Preservation of Business. From the Date of this Agreement until the Closing Date, the Seller (i) shall operate the Properties only in the Ordinary Course of Business, and shall not, without Purchaser's prior written consent, engage in any transaction outside the Ordinary Course of Business except as otherwise permitted herein, (ii) shall not, without Purchaser's prior written consent, sell or list for sale any of the Properties, (iii) shall use its reasonable best efforts to preserve the Properties, including the goodwill, going concern value, and advantageous relationships of the Seller with residents, customers, suppliers, independent contractors, employees and other Persons material to the operation of the Properties, (iv) shall perform its material obligations under the Leases and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, and (vi) shall not take or permit any action or omission which would cause any of its representations or warranties contained herein to become inaccurate in any material respect or any of the covenants made by it to be breached in any material respect. Without limiting the foregoing, without the Purchaser's prior written consent, the Seller will not cause or permit any default to occur under the Existing Debt or cause or permit any increase in the outstanding aggregate principal balance thereof from the Date of this Agreement until the Closing. The Seller shall continue to maintain all insurance policies in full force and effect up to and including the Closing Date. If the Seller contemplates entering into any transaction or agreement or taking any other action requiring the Purchaser's prior written consent under this Agreement, then the Seller shall give the Purchaser notice of such proposed transaction or agreement a reasonable time in advance of the proposed effective date thereof, and the Purchaser shall have three (3) Business Days in which to respond in writing either affirmatively or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheld.
Appears in 4 contracts
Samples: Purchase and Sale Agreement (Brown Flournoy Equity Income Fund LTD Partnership), Purchase and Sale Agreement (Brown Flournoy Equity Income Fund LTD Partnership), Purchase and Sale Agreement (Brown Flournoy Equity Income Fund LTD Partnership)
Preservation of Business. From and after the Date of this Agreement date hereof until the Closing Date, except as set forth on Schedule 8.7 or with the prior written consent of Metaldyne (which consent shall not be unreasonably withheld or delayed), Seller shall:
(ia) shall operate the Properties Business only in the Ordinary Course ordinary course of Business, business and shall not, without Purchaser's prior written consent, engage in any transaction outside consistent with past practice; (b) preserve intact the Ordinary Course of Business except as otherwise permitted herein, (ii) shall not, without Purchaser's prior written consent, sell or list for sale any present business organization and personnel of the PropertiesBusiness and maintain the Transferred Assets in their present repair, working order and operating condition, subject only to ordinary wear and tear; (iiic) shall use its reasonable best efforts to preserve the Properties, including the goodwill, going concern value, goodwill and advantageous business relationships of the Seller Business with residents, customers, suppliers, independent contractors, employees and other Persons material to the operation of the Properties, (iv) shall perform its material obligations under the Leases and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, Business; and (vid) shall not take or permit any action or omission which would cause any of its representations or warranties contained herein use commercially reasonable efforts to become inaccurate in any material respect or any of the covenants made by it to be breached in any material respect. Without limiting the foregoing, without the Purchaser's prior written consent, the Seller will not cause or permit any default to occur under the Existing Debt or cause or permit any increase in the outstanding aggregate principal balance thereof from the Date of this Agreement until the Closing. The Seller shall continue to maintain all insurance policies preserve in full force and effect up to its permits and including licenses included in the Transferred Assets. Without limiting the generality of the foregoing, from the date hereof until the Closing Date. If , Seller shall not, without the Seller contemplates entering into any transaction or agreement or taking any other action requiring the Purchaser's prior written consent under of Metaldyne (which consent shall not be unreasonably withheld or delayed):
(i) sell, transfer, convey, assign or otherwise dispose of any of the Transferred Assets or assets that, if not sold, transferred, conveyed, assigned or otherwise disposed of prior to the Closing, would constitute Transferred Assets, except sales of Inventory in the ordinary course of business and consistent with past practice;
(ii) make any material changes in its accounting or tax systems, policies, principles or practices of the Business, except as required by applicable Law, GAAP or applicable to all or a substantial portion of Seller's facilities or operations;
(iii) acquire or lease any assets of the Business outside the ordinary course of business or any assets which are material to the Business or make any Transferred Assets subject to any Lien, except for Permitted Liens;
(iv) authorize or make any capital expenditures in connection with the Business which individually or in the aggregate are in excess of $1,000,000 other than capital expenditures contemplated by Schedule 8.7;
(v) terminate or modify, amend or otherwise alter or change any of the material terms or provisions of any Assumed Contract the terms of which provide for, individually or in the aggregate, amounts to be paid either to or by Seller or the Business in excess of $50,000; or
(vi) agree to any repricing, giveback or discount pursuant to or in connection with any Assumed Contract which is not provided for by the terms of such Assumed Contract or resulting in payments in excess of $25,000. For the avoidance of doubt, notwithstanding anything to the contrary in this AgreementSection 8.7, then the Seller shall give have the Purchaser notice of right to, prior to the Closing, (i) take any action to the extent such proposed transaction action is contemplated by the Agreement or agreement a reasonable time in advance any of the proposed effective date thereofRelated Agreements, (ii) take any action to the extent undertaken at the written request of Metaldyne, (iii) take or omit to take any action which it is required to take or omit to take by applicable Law or any Governmental Authority and (iv) take all such actions as are reasonably necessary to cause the Agreement or the Related Agreements to be performed and the Purchaser shall have three (3) Business Days in which Transactions to respond in writing either affirmatively or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheldconsummated.
Appears in 2 contracts
Samples: Joint Venture Formation Agreement (Metaldyne Corp), Joint Venture Formation Agreement (Metaldyne Corp)
Preservation of Business. From the Date date of this Agreement until the Closing DateEffective Time, other than as expressly permitted or required by this Agreement, the Purchase Price Adjustment Escrow Agreement or the Indemnification Escrow Agreement, with the prior written consent of Parent (not to be unreasonably withheld or delayed), as required by applicable Law or as set forth in Section 5.2 of the Seller (i) shall operate Disclosure Letter, the Properties only in the Ordinary Course of BusinessCompany shall, and shall notcause the Subsidiaries (including, without Purchaser's prior written consentfor all purposes of this Section 5.2, engage in any transaction outside the Ordinary Course of Business except as otherwise permitted hereinISG) to, (ii) shall not, without Purchaser's prior written consent, sell or list for sale any of the Properties, (iii) shall use its reasonable best efforts to preserve the Properties, including the goodwill, going concern value, and advantageous relationships of the Seller with residents, customers, suppliers, independent contractors, employees and other Persons material to the operation of the Properties, (iv) shall perform its material obligations under the Leases and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, and (vi) shall not take or permit any action or omission which would cause any of its representations or warranties contained herein to become inaccurate in any material respect or any of the covenants made by it to be breached in any material respect. Without limiting the foregoing, without the Purchaser's prior written consent, the Seller will not cause or permit any default to occur under the Existing Debt or cause or permit any increase operated in the outstanding aggregate principal balance thereof from ordinary course of business and consistent with past practice in all material respects. From the Date date of this Agreement until the Closing. The Seller shall continue to maintain all insurance policies Effective Time, other than as expressly permitted or required by this Agreement, the Purchase Price Adjustment Escrow Agreement or the Indemnification Escrow Agreement, as set forth in full force and effect up to and including the Closing Date. If Section 5.2 of the Seller contemplates entering into any transaction Disclosure Letter, as required by applicable Law or agreement or taking any other action requiring with the Purchaser's prior written consent under of Parent (not to be unreasonably withheld or delayed), the Company shall, and shall cause the Subsidiaries to, use commercially reasonable efforts to preserve intact their businesses, the Assets and their relationships with customers, suppliers and others having business dealings with them in all material respects, and keep available the services of their present officers and significant employees. Without limiting the generality of the foregoing, the Company shall not, and shall cause the Subsidiaries not to, other than as otherwise expressly permitted or required by this Agreement, then the Purchase Price Adjustment Escrow Agreement or the Indemnification Escrow Agreement, with the prior written consent of Parent (it being understood that, with respect to clauses (f), (h), (i), (j), (k), (s), (o) and (u)(ii) below, such consent shall 63 not be unreasonably withheld or delayed), as required by applicable Law or as set forth in Section 5.2 of the Seller Disclosure Letter:
(a) (i) amend or otherwise change in any material respect their respective Organizational Documents or (ii) cause any of the Company or any of the Subsidiaries to be organized outside of the United States;
(b) sell, lease, transfer, license, assign or otherwise dispose of any Asset having a value in excess of $50,000 or in the aggregate in excess of $250,000, other than the disposition of inventory in the ordinary course of business consistent with past practice;
(c) (i) grant or pay any severance or termination pay to (or amend any such existing arrangement with) any current or former directors, officers, employees, consultants, independent contractors of the Company or its Subsidiaries (collectively, “Employees”) (other than payments under existing agreements, severance policies or termination pay policies in effect on the date of this Agreement), (ii) pay or award, or commit to pay or award, any bonuses or incentive compensation, (iii) increase benefits payable under any existing severance or termination pay policies or employment agreements, (iv) become party to, establish, adopt or amend an employment, severance, termination, retention or change of control, deferred compensation or other similar agreement entered into with any Employee, (v) become party to, commence participation in, establish, adopt, amend or terminate any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, stock option, restricted stock or other benefit plan or arrangement covering any Employee, (vi) amend, modify, terminate or materially modify a prior interpretation of any existing Benefit Plan in any manner that would increase the liability of the Company or any of the Subsidiaries, other than increases that are not material arising due to customary renewals of third party vendor arrangements in the ordinary course of business, (vii) grant any new equity awards to any Employee, (viii) except as provided in Section 2.9, accelerate the vesting or payment of, or fund or in any other way secure the payment, compensation or benefits under, any Benefit Plan to the extent not required by the terms of this Agreement or such Benefit Plan as in effect on the date of this Agreement, (ix) otherwise increase salaries, bonuses or other compensation or benefits payable to any Employee (except with regard to employees who are not directors or officers, increases in base salaries or base wages in the ordinary course of business consistent with past practice, which shall give not exceed 3.0% in the Purchaser notice aggregate for all such employees on an annualized basis) or (x) hire or terminate the employment of any Employee who has (in the case of Employees to be terminated) or would have (in the case of Employees to be hired) target total compensation (cash and target equity) of $350,000 or more;
(d) except for the cancellation of the Options and RSUs in accordance with this Agreement and the issuance of shares of Common Stock upon exercise of Options in accordance with the terms thereof, issue, sell or grant options, warrants or rights to purchase or subscribe to, enter into any arrangement or contract with respect to the issuance or sale of, or redeem, repurchase or otherwise acquire, any Company Securities or any Subsidiary Securities or make any changes (by split, combination, reorganization, reclassification or otherwise) in the capital structure of the Company or any of the Subsidiaries;
(e) incur any Indebtedness, except any Funded Debt pursuant to the Senior Credit Agreements that will be paid off in full at the Closing;
(f) create or incur any Lien on any Asset, other than in the ordinary course of business consistent with past practice, Permitted Liens and Liens securing Indebtedness under the Senior Credit Agreements;
(g) declare, set aside or pay any dividend or other distribution with respect to the capital stock of the Company;
(h) merge or consolidate with any other Person or acquire a material amount of stock or assets of any other Person or effect any business combination, recapitalization or similar transaction (other than the Merger);
(i) except in the ordinary course of business consistent with past practice (including extensions at the end of a term in the ordinary course of business consistent with past practice), enter into, transfer or terminate, or materially modify or amend, or (ii) release, assign or otherwise change any material rights under or (iii) waive any material right under or discharge any other party of any material obligation under, any Material Contract;
(j) make any material loan, advance or capital contribution to or investment in any Person, other than loans, advances or capital contributions to or investments in the Subsidiaries in the ordinary course of business consistent with past practice;
(k) acquire any real property or any direct or indirect interest in any real property;
(l) make any material change to its accounting methods, policies or practices with respect to the maintenance of books of account and records, except as required by GAAP or applicable Law;
(m) make, change or revoke any material Tax election, change any Tax accounting period or any material method of Tax accounting, amend any material 65 Tax Returns or file any claims for material Tax refunds, enter into any closing agreement, settle or compromise any material Tax claim, audit, assessment or other proceeding or surrender any right to claim a material Tax refund, offset or other reduction in Tax liability;
(n) fail to make capital expenditures in the amounts and for the purposes set forth in the Company’s capital expenditures budget existing as of the date of this Agreement, or make any other capital expenditures or commitments for capital expenditures in an amount in excess of $500,000 in the aggregate;
(o) forgive, cancel or compromise any material debt or claim, or waive, release or assign any right or claim of material value, other than in the ordinary course of business consistent with past practice;
(p) fail to pay or satisfy any material account payable or other liability incurred in the ordinary course of business consistent with past practice (including in each case, the timing of any such proposed transaction payments), other than any such liability that is being contested by the Company or its Subsidiaries in good faith;
(q) make any material payments, grant material discounts or any other consideration to customers or suppliers, other than in the ordinary course of business consistent with past practice;
(r) make any material changes in the management of Working Capital or materially modify practices with respect to the writing and mailing of checks, other than in the ordinary course of business consistent with past practice;
(s) settle or compromise any material Litigation or enter into any material settlement, compromise or release contemplating or involving any admission of material wrongdoing or misconduct or providing for any material relief or settlement other than the payment of money;
(t) adopt or enter into a plan or agreement a reasonable time in advance of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the proposed effective date thereof, and Company or any of the Purchaser shall have three Subsidiaries (3other than the Merger); or
(u) Business Days in which to respond in writing either affirmatively (i) take or negatively. If the Purchaser shall fail to so respondtake any action materially inconsistent with Section 5.2(u) of the Seller Disclosure Letter (relating to the integration of ISG), then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheld.or
Appears in 2 contracts
Samples: Acquisition Agreement, Acquisition Agreement
Preservation of Business. From During the Date of period from the date hereof until the Closing, except as required by applicable Legal Requirements, as otherwise expressly contemplated by this Agreement until or as set forth on Schedule 7.4, or with the Closing Dateprior written consent of Buyer, Seller shall, and shall cause its Affiliates to:
(a) operate and maintain the Seller (i) shall operate Assets and the Properties only Business in the Ordinary Course of Business, and shall not, without Purchaser's prior written consent, engage in any transaction outside the Ordinary Course of Business except as otherwise permitted herein, Course;
(iib) shall not, without Purchaser's prior written consent, sell or list for sale any of the Properties, (iii) shall use its commercially reasonable best efforts to preserve the Properties, including the goodwill, going concern value, goodwill of and advantageous relationships of the Seller with residentsGovernmental Authorities, customers, suppliers, independent vendors, lessors, licensors, licensees, contractors, distributors, agents, employees and other Persons material to others having business dealings with Seller or its Affiliates in connection with Seller’s or its Affiliates’ use of the Assets or operation of the PropertiesBusiness;
(c) comply with all Legal Requirements and Governmental Authorizations applicable to Seller’s ownership or use of the Assets or operation of the Business;
(d) maintain in full force and effect policies of insurance or substantially equivalent policies that relate to the Assets or the Business;
(e) not mortgage, pledge or subject to any Encumbrance (ivother than a Permitted Encumbrance) shall perform any of the Assets;
(f) not sell, assign, license, grant a covenant not to xxx or release, transfer, convey, lease, surrender, relinquish, permit to expire, terminate or lapse, or otherwise dispose of any right, title or interest in or to any of the Assets;
(g) not settle or compromise any claim, Liability, Action or obligation related to or in connection with the Assets, any Assumed Liability, other than the payment, discharge or satisfaction of Liabilities in the ordinary course of business or as otherwise contemplated by this Agreement;
(h) not materially amend, waive, modify or consent to the termination of any Assigned Contract or any Governmental Authorization, or materially amend, waive, modify or consent to the termination of rights of Seller or its material obligations under Affiliates thereunder;
(i) not terminate the Leases employment or otherwise materially modify the terms and conditions of employment (including increasing the base salary payable or entering into, renewing or amending any offer letter or other material agreements affecting employment or consulting agreement) of any of the Properties, Target Employees;
(vj) shall perform its material obligations under all Contracts, and not enter into any lease of real or personal property or any renewals thereof for the Assets;
(vik) shall not take or permit any action or omission which would reasonably be expected to cause any representation or warranty of its representations Seller in this Agreement to be or warranties contained herein to become inaccurate untrue in any material respect or knowingly omit to take any action reasonably necessary to prevent any such representation or warranty from being untrue in any material respect at such time; or
(l) authorize or enter into an agreement to do any of the covenants made by it to be breached in any material respect. Without limiting the foregoing, without the Purchaser's prior written consent, the Seller will not cause or permit any default to occur under the Existing Debt or cause or permit any increase in the outstanding aggregate principal balance thereof from the Date of this Agreement until the Closing. The Seller shall continue to maintain all insurance policies in full force and effect up to and including the Closing Date. If the Seller contemplates entering into any transaction or agreement or taking any other action requiring the Purchaser's prior written consent under this Agreement, then the Seller shall give the Purchaser notice of such proposed transaction or agreement a reasonable time in advance of the proposed effective date thereof, and the Purchaser shall have three (3) Business Days in which to respond in writing either affirmatively or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheld.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Cafepress Inc.)
Preservation of Business. From the Date date of this Agreement until the Closing DateEffective Time, other than as expressly permitted or required by this Agreement, the Purchase Price Adjustment Escrow Agreement or the Indemnification Escrow Agreement, with the prior written consent of Parent (not to be unreasonably withheld or delayed), as required by applicable Law or as set forth in Section 5.2 of the Seller (i) shall operate Disclosure Letter, the Properties only in the Ordinary Course of BusinessCompany shall, and shall notcause the Subsidiaries (including, without Purchaser's prior written consentfor all purposes of this Section 5.2, engage in any transaction outside the Ordinary Course of Business except as otherwise permitted hereinISG) to, (ii) shall not, without Purchaser's prior written consent, sell or list for sale any of the Properties, (iii) shall use its reasonable best efforts to preserve the Properties, including the goodwill, going concern value, and advantageous relationships of the Seller with residents, customers, suppliers, independent contractors, employees and other Persons material to the operation of the Properties, (iv) shall perform its material obligations under the Leases and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, and (vi) shall not take or permit any action or omission which would cause any of its representations or warranties contained herein to become inaccurate in any material respect or any of the covenants made by it to be breached in any material respect. Without limiting the foregoing, without the Purchaser's prior written consent, the Seller will not cause or permit any default to occur under the Existing Debt or cause or permit any increase operated in the outstanding aggregate principal balance thereof from ordinary course of business and consistent with past practice in all material respects. From the Date date of this Agreement until the Closing. The Seller shall continue to maintain all insurance policies Effective Time, other than as expressly permitted or required by this Agreement, the Purchase Price Adjustment Escrow Agreement or the Indemnification Escrow Agreement, as set forth in full force and effect up to and including the Closing Date. If Section 5.2 of the Seller contemplates entering into any transaction Disclosure Letter, as required by applicable Law or agreement or taking any other action requiring with the Purchaser's prior written consent under of Parent (not to be unreasonably withheld or delayed), the Company shall, and shall cause the Subsidiaries to, use commercially reasonable efforts to preserve intact their businesses, the Assets and their relationships with customers, suppliers and others having business dealings with them in all material respects, and keep available the services of their present officers and significant employees. Without limiting the generality of the foregoing, the Company shall not, and shall cause the Subsidiaries not to, other than as otherwise expressly permitted or required by this Agreement, then the Purchase Price Adjustment Escrow Agreement or the Indemnification Escrow Agreement, with the prior written consent of Parent (it being understood that, with respect to clauses (f), (h), (i), (j), (k), (s), (o) and (u)(ii) below, such consent shall 63 not be unreasonably withheld or delayed), as required by applicable Law or as set forth in Section 5.2 of the Seller shall give the Purchaser notice of such proposed transaction Disclosure Letter:
(a) (i) amend or agreement a reasonable time otherwise change in advance any material respect their respective Organizational Documents or (ii) cause any of the proposed effective Company or any of the Subsidiaries to be organized outside of the United States;
(b) sell, lease, transfer, license, assign or otherwise dispose of any Asset having a value in excess of $50,000 or in the aggregate in excess of $250,000, other than the disposition of inventory in the ordinary course of business consistent with past practice;
(c) (i) grant or pay any severance or termination pay to (or amend any such existing arrangement with) any current or former directors, officers, employees, consultants, independent contractors of the Company or its Subsidiaries (collectively, “Employees”) (other than payments under existing agreements, severance policies or termination pay policies in effect on the date thereofof this Agreement), and (ii) pay or award, or commit to pay or award, any bonuses or incentive compensation, (iii) increase benefits payable under any existing severance or termination pay policies or employment agreements, (iv) become party to, establish, adopt or amend an employment, severance, termination, retention or change of control, deferred compensation or other similar agreement entered into with any Employee, (v) become party to, commence participation in, establish, adopt, amend or terminate any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, stock option, restricted stock or other benefit plan or arrangement covering any Employee, (vi) amend, modify, terminate or materially modify a prior interpretation of any existing Benefit Plan in any manner that would increase the Purchaser shall have three liability of the Company or any of the Subsidiaries, other than increases that are not material arising due to customary renewals of third party vendor arrangements in the ordinary course of business, (3vii) Business Days in which to respond in writing either affirmatively or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent grant any new equity awards to any such transactionEmployee, agreement (viii) except as provided in Section 2.9, accelerate the vesting or other action be unreasonably withheld.payment of, or fund or in any
Appears in 1 contract
Samples: Acquisition Agreement
Preservation of Business. From the Date date of this Agreement until the Closing DateEffective Time, other than as expressly permitted or required by this Agreement, the Purchase Price Adjustment Escrow Agreement or the Indemnification Escrow Agreement, with the prior written consent of Parent (not to be unreasonably withheld or delayed), as required by applicable Law or as set forth in Section 5.2 of the Seller (i) shall operate Disclosure Letter, the Properties only in the Ordinary Course of BusinessCompany shall, and shall notcause the Subsidiaries (including, without Purchaser's prior written consentfor all purposes of this Section 5.2, engage in any transaction outside the Ordinary Course of Business except as otherwise permitted hereinISG) to, (ii) shall not, without Purchaser's prior written consent, sell or list for sale any of the Properties, (iii) shall use its reasonable best efforts to preserve the Properties, including the goodwill, going concern value, and advantageous relationships of the Seller with residents, customers, suppliers, independent contractors, employees and other Persons material to the operation of the Properties, (iv) shall perform its material obligations under the Leases and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, and (vi) shall not take or permit any action or omission which would cause any of its representations or warranties contained herein to become inaccurate in any material respect or any of the covenants made by it to be breached in any material respect. Without limiting the foregoing, without the Purchaser's prior written consent, the Seller will not cause or permit any default to occur under the Existing Debt or cause or permit any increase operated in the outstanding aggregate principal balance thereof from ordinary course of business and consistent with past practice in all material respects. From the Date date of this Agreement until the Closing. The Seller shall continue to maintain all insurance policies Effective Time, other than as expressly permitted or required by this Agreement, the Purchase Price Adjustment Escrow Agreement or the Indemnification Escrow Agreement, as set forth in full force and effect up to and including the Closing Date. If Section 5.2 of the Seller contemplates entering into any transaction Disclosure Letter, as required by applicable Law or agreement or taking any other action requiring with the Purchaser's prior written consent under of Parent (not to be unreasonably withheld or delayed), the Company shall, and shall cause the Subsidiaries to, use commercially reasonable efforts to preserve intact their businesses, the Assets and their relationships with customers, suppliers and others having business dealings with them in all material respects, and keep available the services of their present officers and significant employees. Without limiting the generality of the foregoing, the Company shall not, and shall cause the Subsidiaries not to, other than as otherwise expressly permitted or required by this Agreement, then the Purchase Price Adjustment Escrow Agreement or the Indemnification Escrow Agreement, with the prior written consent of Parent (it being understood that, with respect to clauses (f), (h), (i), (j), (k), (s), (o) and (u)(ii) below, such consent shall 63 not be unreasonably withheld or delayed), as required by applicable Law or as set forth in Section 5.2 of the Seller Disclosure Letter:
(a) (i) amend or otherwise change in any material respect their respective Organizational Documents or (ii) cause any of the Company or any of the Subsidiaries to be organized outside of the United States;
(b) sell, lease, transfer, license, assign or otherwise dispose of any Asset having a value in excess of $50,000 or in the aggregate in excess of $250,000, other than the disposition of inventory in the ordinary course of business consistent with past practice;
(c) (i) grant or pay any severance or termination pay to (or amend any such existing arrangement with) any current or former directors, officers, employees, consultants, independent contractors of the Company or its Subsidiaries (collectively, “Employees”) (other than payments under existing agreements, severance policies or termination pay policies in effect on the date of this Agreement), (ii) pay or award, or commit to pay or award, any bonuses or incentive compensation, (iii) increase benefits payable under any existing severance or termination pay policies or employment agreements, (iv) become party to, establish, adopt or amend an employment, severance, termination, retention or change of control, deferred compensation or other similar agreement entered into with any Employee, (v) become party to, commence participation in, establish, adopt, amend or terminate any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, stock option, restricted stock or other benefit plan or arrangement covering any Employee, (vi) amend, modify, terminate or materially modify a prior interpretation of any existing Benefit Plan in any manner that would increase the liability of the Company or any of the Subsidiaries, other than increases that are not material arising due to customary renewals of third party vendor arrangements in the ordinary course of business, (vii) grant any new equity awards to any Employee, (viii) except as provided in Section 2.9, accelerate the vesting or payment of, or fund or in any other way secure the payment, compensation or benefits under, any Benefit Plan to the extent not required by the terms of this Agreement or such Benefit Plan as in effect on the date of this Agreement, (ix) otherwise increase salaries, bonuses or other compensation or benefits payable to any Employee (except with regard to employees who are not directors or officers, increases in base salaries or base wages in the ordinary course of business consistent with past practice, which shall not exceed 3.0% in the aggregate for all such employees on an annualized basis) or (x) hire or terminate the employment of any Employee who has (in the case of Employees to be terminated) or would have (in the case of Employees to be hired) target total compensation (cash and target equity) of $350,000 or more;
(d) except for the cancellation of the Options and RSUs in accordance with this Agreement and the issuance of shares of Common Stock upon exercise of Options in accordance with the terms thereof, issue, sell or grant options, warrants or rights to purchase or subscribe to, enter into any arrangement or contract with respect to the issuance or sale of, or redeem, repurchase or otherwise acquire, any Company Securities or any Subsidiary Securities or make any changes (by split, combination, reorganization, reclassification or otherwise) in the capital structure of the Company or any of the Subsidiaries;
(e) incur any Indebtedness, except any Funded Debt pursuant to the Senior Credit Agreements that will be paid off in full at the Closing;
(f) create or incur any Lien on any Asset, other than in the ordinary course of business consistent with past practice, Permitted Liens and Liens securing Indebtedness under the Senior Credit Agreements;
(g) declare, set aside or pay any dividend or other distribution with respect to the capital stock of the Company;
(h) merge or consolidate with any other Person or acquire a material amount of stock or assets of any other Person or effect any business combination, recapitalization or similar transaction (other than the Merger);
(i) except in the ordinary course of business consistent with past practice (including extensions at the end of a term in the ordinary course of business consistent with past practice), enter into, transfer or terminate, or materially modify or amend, or (ii) release, assign or otherwise change any material rights under or (iii) waive any material right under or discharge any other party of any material obligation under, any Material Contract;
(j) make any material loan, advance or capital contribution to or investment in any Person, other than loans, advances or capital contributions to or investments in the Subsidiaries in the ordinary course of business consistent with past practice;
(k) acquire any real property or any direct or indirect interest in any real property;
(l) make any material change to its accounting methods, policies or practices with respect to the maintenance of books of account and records, except as required by GAAP or applicable Law;
(m) make, change or revoke any material Tax election, change any Tax accounting period or any material method of Tax accounting, amend any material Tax Returns or file any claims for material Tax refunds, enter into any closing agreement, settle or compromise any material Tax claim, audit, assessment or other proceeding or surrender any right to claim a material Tax refund, offset or other reduction in Tax liability;
(n) fail to make capital expenditures in the amounts and for the purposes set forth in the Company’s capital expenditures budget existing as of the date of this Agreement, or make any other capital expenditures or commitments for capital expenditures in an amount in excess of $500,000 in the aggregate;
(o) forgive, cancel or compromise any material debt or claim, or waive, release or assign any right or claim of material value, other than in the ordinary course of business consistent with past practice;
(p) fail to pay or satisfy any material account payable or other liability incurred in the ordinary course of business consistent with past practice (including in each case, the timing of any such payments), other than any such liability that is being contested by the Company or its Subsidiaries in good faith;
(q) make any material payments, grant material discounts or any other consideration to customers or suppliers, other than in the ordinary course of business consistent with past practice;
(r) make any material changes in the management of Working Capital or materially modify practices with respect to the writing and mailing of checks, other than in the ordinary course of business consistent with past practice;
(s) settle or compromise any material Litigation or enter into any material settlement, compromise or release contemplating or involving any admission of material wrongdoing or misconduct or providing for any material relief or settlement other than the payment of money;
(t) adopt or enter into a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of the Subsidiaries (other than the Merger); or
(u) (i) take or fail to take any action materially inconsistent with Section 5.2(u) of the Seller Disclosure Letter (relating to the integration of ISG), or (ii) enter into (A) any Lease or (B) any contract that requires the Company and the Subsidiaries to spend more than $1,000,000 over the term of the contract, in each case in connection with the ISG integration, whether or not consistent with Section 5.2(u) of the Seller Disclosure Letter (relating to the integration of ISG); or 66
(v) authorize any of, or agree or commit to do any of, the foregoing actions. Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall give Parent, directly or indirectly, the Purchaser notice of such proposed transaction right to control or agreement a reasonable time in advance direct the operations of the proposed effective date thereofCompany prior to the Closing. Prior to the Closing, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the operations of the Company and the Purchaser shall have three (3) Business Days in which to respond in writing either affirmatively or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheldSubsidiaries.
Appears in 1 contract
Preservation of Business. (a) From the Date date of this Agreement until the Closing Date, subject to the Seller provisions of Section 6.17 and except for Reorganization Steps contemplated to occur prior to consummation of the Reorganization, FDC (i) shall operate operate, and shall use its reasonable best efforts to cause the Properties Property Partnerships to be operated, only in the Ordinary Course of Business, and shall not, without PurchaserMAAC's prior written consent, engage in any transaction outside the Ordinary Course of Business except as otherwise permitted herein, (ii) shall not, without PurchaserMAAC's prior written consent, sell or list for sale any of the PropertiesProperties or any of its interests in the Property Partnerships, except for sale of Resale Properties in the Ordinary Course of Business, (iii) shall use its reasonable best efforts to preserve the PropertiesAssets, including the goodwill, going concern value, employee base, systems and advantageous relationships of FDC and the Seller Property Partnerships with residents, customers, suppliers, independent contractors, employees and other Persons material to the operation of the PropertiesProperties and the Third Party Businesses, (iv) shall perform its, and shall use its reasonable best efforts to cause the Property Partnerships to perform their respective, material obligations under the Leases and other material agreements affecting FDC or the Properties, (v) shall perform FDC's material obligations, and use its reasonable best efforts to cause the Property Partnerships to perform their material obligations obligations, under all Contracts, and (vi) shall not take or permit any action or omission which would cause any of its representations or warranties contained herein to become inaccurate in any material respect or any of the covenants made by it to be breached in any material respect. Without limiting the foregoing, without the PurchaserMAAC's prior written consent, the Seller FDC will not cause or permit any default to occur under the Existing Debt or cause or permit any increase in the outstanding aggregate principal balance thereof from the Date of this Agreement date hereof until the Closing; provided, however, that (i) the outstanding principal amount of any Construction and Development Debt may be increased to fund expenditures made in conformity with the Development Budget and Schedule, and (ii) the outstanding principal amount of the Credit Line Debt may be increased to fund the closing of the Acquisition Contracts in accordance with Section 6.4, and for other working capital purposes consistent with operating in the Ordinary Course of Business. The Seller FDC shall continue to maintain and shall cause each Property Partnership to continue to maintain all insurance policies referred to in Section 7.1.13 in full force and effect up to and including the Closing Date. If the Seller FDC or any Property Partnership contemplates entering into any transaction or agreement or taking any other action requiring the PurchaserMAAC's prior written consent under this Agreement, then the Seller FDC shall give the Purchaser MAAC notice of such proposed transaction or agreement a reasonable time in advance of the proposed effective date thereof, and the Purchaser MAAC shall have three (3) Business Days business days in which to respond in writing either affirmatively or negatively. If the Purchaser MAAC shall fail to so respond, then PurchaserMAAC's consent will be irrebuttably presumed. In no event shall PurchaserMAAC's consent to any such transaction, agreement or other action be unreasonably withheld.
(b) From the date of this Agreement until the Closing Date, MAAC and MAALP (i) shall cause their respective properties (and the properties owned by their Affiliates) to be operated only in the Ordinary Course of Business, (ii) shall use its reasonable best efforts to preserve the goodwill, going concern value, employee base, systems and advantageous relationships of MAAC and MAALP and their Affiliates with residents, customers, suppliers, independent contractors, employees and other Persons material to the operation of MAAC, MAALP, their respective properties and Affiliates, (iii) shall perform its, and cause their Affiliates to perform their, material obligations under the leases and other material agreements affecting their respective properties, and (iv) shall not take or permit any action or omission which would cause any of MAAC's or MAALP's representations or warranties contained herein to become inaccurate in any material respect or any of the covenants made by it to be breached in any material respect.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Mid America Apartment Communities Inc)
Preservation of Business. From the Date of this Agreement until Until the Closing Date, the Seller (i) shall operate continue to conduct the Properties only Business as the Seller conducted in the Ordinary Course of Business prior to the Execution Date. The Seller: shall not create, incur or assume nor allow to be created, incurred or assumed any indebtedness, [otherwise than in Ordinary Course of Business, or Encumbrance over the Business or any part thereof]; shall not change nor allow to be changed in any manner the terms and conditions of employment and compensation of the Employees other than in the Ordinary Course of Business, and ; shall not, without Purchaser's prior written consent, engage in not fail to take any transaction outside the Ordinary Course of Business except as otherwise permitted herein, (ii) shall not, without Purchaser's prior written consent, sell or list for sale action required to maintain any of the Propertiesinsurances protecting the Business in force or knowingly do anything to make any policy of insurance void or voidable and shall, (iii) shall use its reasonable best efforts immediately upon the occurrence of any insured event or matter covered by insurance, take all steps to preserve the Properties, including the goodwill, going concern value, and advantageous relationships of the Seller with residents, customers, suppliers, independent contractors, employees and other Persons material to the operation of the Properties, (iv) shall perform its material obligations recover payment in full under the Leases and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, and (vi) shall not take relevant insurance policy or permit any action or omission which would cause any of its representations or warranties contained herein to become inaccurate in any material respect or any of the covenants made by it to be breached in any material respect. Without limiting the foregoing, without the Purchaser's prior written consent, the Seller will not cause or permit any default to occur under the Existing Debt or cause or permit any increase in the outstanding aggregate principal balance thereof from the Date of this Agreement until relevant insurer which carries the Closing. The Seller risk and shall take all steps to repair or reinstate the damaged assets (other than current assets); shall take all action to continue to maintain all insurance policies in full force and effect the agreements in relation to the Leasehold Properties and the Seller shall not knowingly do anything to make any such agreement for any of the Leasehold Properties void or voidable; shall not sell, transfer, lease, sublease, license or otherwise dispose of any Assets in excess of Rs. [●] (Rupees [●]) singly or Rs. [●] (Rupees [●]) cumulatively, except in the Ordinary Course of Business; shall not make nor allow to be made any capital commitment relating to the Business with an individual contract value of Rs. [●] (Rupees [●]) or collectively exceeding the sum of Rs. [●] (Rupees [●]). Provided, however, that the provisions of this Clause 10.7.6 shall not apply to any expenditure or commitment made or proposed to be made by the Seller in relation to the relocation of Coexistent Plant at Powai, Mumbai, to Vadodara, Gujarat; shall not give any loans to any of the Employees other than as per Employee Plans and shall not make any payments to the Employees of all compensation including bonus, licenses, ex-gratia, etc., other than in accordance with the said Employee Plans and/or past practices; shall carry out maintenance in due course with due diligence using prudent practices; shall not enter into any contract which would impose any Material Adverse Effect; shall not merge, reorganise or approve any amalgamation schemes with respect to the Business. The Seller shall, with effect from the date hereof and up to and including Closing, in respect of the Closing Date. If Business, furnish to the Seller contemplates entering into Buyer the following: promptly upon becoming aware, details of any transaction litigation, arbitration or agreement administrative proceedings which are current or taking any other action requiring pending, which are likely to have a Material Adverse Effect or which would affect the Purchaser's prior written consent ability of either Party to perform its obligations under this Agreement; and promptly upon becoming aware, then details of any default or potential default under the Seller shall give the Purchaser notice of such proposed transaction or agreement a reasonable time in advance terms of the proposed effective date thereofSeller’s Warranties, and the Purchaser shall have three (3) Business Days in which to respond in writing either affirmatively Assigned Contracts or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheldRegulatory Consents.
Appears in 1 contract
Samples: Business Transfer Agreement
Preservation of Business. From the Date date of this Agreement until the First Closing Date, the Seller (i) Branch shall operate cause the Properties and its Third Party Management Business to be operated only in the Ordinary Course ordinary and usual course of Businessbusiness and consistent with past practice, and shall not, without Purchaser's prior written consent, engage in any transaction outside the Ordinary Course of Business except as otherwise permitted herein, (ii) shall not, without Purchaser's prior written consent, not sell or list for sale any of the PropertiesProperties (other than those Disposition Properties listed on Schedule ) or any of its interests in the Subpartnerships, (iii) shall use its reasonable best efforts to preserve the Properties, including the goodwill, going concern value, good will and advantageous relationships of Branch and the Seller Subpartnerships with residentstenants, customers, suppliers, independent contractors, employees and other Persons material to the operation of the PropertiesProperties and Branch's Third Party Management Business, (iv) shall perform its its, and cause the Subpartnerships to perform their, material obligations under the Leases and other material agreements affecting the Properties, (v) shall perform its Branch's material obligations under all Contracts, the Management Contracts and (vi) shall not take or permit any action or omission which would cause any of its representations or warranties contained herein to become inaccurate in any material respect or any of the covenants made by it to be breached in any material respect. Without limiting the foregoing, without the Purchaser's prior written consent, the Seller Branch will not cause or permit any default to occur under the Existing Mortgage Debt or cause or permit any increase in the outstanding aggregate principal balance thereof from the Date of this Agreement date hereof until the First Closing, except to fund expenditures made in conformity with the Development Budget and Schedule and the TI Budget and Schedule and except to fund the closing of the Acquisition Properties in accordance with Section . The Seller Branch shall continue to maintain all insurance policies referred to in Section in full force and effect up to and including the First Closing Date. If From the Seller contemplates entering into any transaction or agreement or taking any other action requiring date of this Agreement until the Purchaser's prior written consent under this AgreementFirst Closing Date, then Regency shall cause its properties and the Seller shall give the Purchaser notice of such proposed transaction or agreement a reasonable time in advance third party management business of the proposed effective date thereofOld Management Company to be operated only in the ordinary and usual course of business and consistent with past practice, shall use its reasonable best efforts to preserve the good will and advantageous relationships of Regency and its subsidiaries with tenants, customers, suppliers, independent contractors, employees and other Persons material to the operation of Regency's properties and the third party management business of Old Management Company, shall perform its, and cause its subsidiaries to perform their, material obligations under the Purchaser leases and other material agreements affecting their respective properties, shall have three (3) Business Days cause Old Management Company to perform its material obligations and shall not take or permit any action or omission which would cause any of Regency's representations or warranties contained herein to become inaccurate in which any material respect or any of the covenants made by it to respond be breached in writing either affirmatively or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheldmaterial respect.
Appears in 1 contract
Preservation of Business. From the Date date of this Agreement until the Closing DateEffective Time, the Seller other than (i) shall operate the Properties only in the Ordinary Course of Business, and shall not, without Purchaser's prior written consent, engage in any transaction outside the Ordinary Course of Business except as otherwise expressly permitted hereinor required by this Agreement, (ii) shall not, without Purchaser's with the prior written consentconsent of Parent (not to be unreasonably withheld, sell delayed or list for sale any of the Propertiesconditioned), (iii) shall use its reasonable best efforts to preserve the Properties, including the goodwill, going concern value, and advantageous relationships of the Seller with residents, customers, suppliers, independent contractors, employees and other Persons material to the operation of the Properties, as required by applicable Law or (iv) shall perform its material obligations under as set forth in Section 5.2 of the Leases and other material agreements affecting Disclosure Letter, the Properties, (v) shall perform its material obligations under all ContractsCompany shall, and (vi) shall not take or permit any action or omission which would cause any of its representations or warranties contained herein to become inaccurate in any material respect or any of the covenants made by it to Subsidiaries to, be breached in any material respect. Without limiting the foregoing, without the Purchaser's prior written consent, the Seller will not cause or permit any default to occur under the Existing Debt or cause or permit any increase operated in the outstanding aggregate principal balance thereof from ordinary course of business and consistent with past practice in all material respects. From the Date date of this Agreement until the Closing. The Seller shall continue to maintain all insurance policies Effective Time, other than as expressly permitted or required by this Agreement, the Purchase Price Adjustment Escrow Agreement or the Indemnification Escrow Agreement, as set forth in full force and effect up to and including Section 5.2 of the Closing Date. If Disclosure Letter, as required by applicable Law or with the Seller contemplates entering into any transaction or agreement or taking any other action requiring the Purchaser's prior written consent under of Parent (not to be unreasonably withheld, delayed or conditioned), the Company shall, and shall cause the Subsidiaries to, use commercially reasonable efforts to preserve intact their businesses, the Assets and their relationships with customers, suppliers and others having business dealings with them in all material respects, and keep available the services of their present officers and significant employees. Without limiting the generality of the foregoing, the Company shall not, and shall cause the Subsidiaries not to, other than (w) as otherwise expressly permitted or required by this Agreement, then the Seller Purchase Price Adjustment Escrow Agreement or the Indemnification Escrow Agreement, (x) with the prior written consent of Parent (it being understood that such consent shall give not be unreasonably withheld, delayed or conditioned), (y) as required by applicable Law or (z) as set forth in Section 5.2 of the Purchaser notice Disclosure Letter:
(a) amend or otherwise change in any material respect their respective Organizational Documents;
(b) sell, lease, transfer, license, assign or otherwise dispose of any Asset having a value in excess of $2,000,000 individually or in the aggregate, other than the disposition of inventory in the ordinary course of business consistent with past practice;
(c) (i) grant or pay any severance or termination pay to (or amend any such proposed existing arrangement with) any current or former director, officer, employee or independent contractor of the Company or any of the Subsidiaries (other than payments in accordance with the terms of any existing agreements, severance policies or termination pay policies as in effect on the date of this Agreement), (ii) increase benefits payable under any existing severance or termination pay policies or employment agreements, (iii) establish, adopt or amend an employment, severance, termination, retention or change of control, deferred compensation or other similar agreement entered into with any current or former director, officer, employee or independent contractor of the Company or any of the Subsidiaries, (iv) establish, adopt, amend or terminate any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, stock option, restricted stock or other benefit plan or arrangement covering any current or former director, officer, employee or independent contractor of the Company or any of the Subsidiaries, (v) amend, modify, terminate or interpret any existing Benefit Plan in any manner that would increase the liability of the Company or any of the Subsidiaries, other than increases that are not material arising due to customary renewals of third party vendor arrangements in the ordinary course of business, (vi) grant any new equity awards to any current or former director, officer, employee or independent contractor of the Company or any of the Subsidiaries, (vii) except as provided in Section 2.9, accelerate the vesting or payment of, or fund or in any other way secure the payment, compensation or benefits under, any Benefit Plan to the extent not required by the terms of this Agreement or such Benefit Plan as in effect on the date of this Agreement, (viii) otherwise grant, award or increase, or commit to grant, award or increase, salaries, bonuses or other compensation or benefits payable to any current or former director, officer, employee or independent contractor of the Company or any of the Subsidiaries (except with regard to employees who are not directors or officers, increases in base salaries or base wages arising in connection with promotions in the ordinary course of business consistent with past practice that do not exceed 4% of current pay or compensation or as required pursuant to the terms of any Benefit Plan or as in effect on the date of this Agreement) or (ix) hire or terminate the employment of any individual who has (in the case of individuals to be terminated) or would have (in the case of individuals to be hired) target total compensation (cash and target incentive) of $140,000 or more;
(d) except for the cancellation of the Options in accordance with this Agreement and the issuance of shares of Common Stock upon exercise of Options in accordance with the terms thereof as in effect as of the date hereof, issue, sell or grant options, warrants or rights to purchase or subscribe to, enter into any arrangement or contract with respect to the issuance or sale of, or redeem or repurchase, any Company Securities or any Subsidiary Securities or make any changes (by split, combination, reorganization, reclassification or otherwise) in the capital structure of the Company or any of the Subsidiaries;
(e) incur any Indebtedness, except pursuant to the Existing Credit Agreements;
(f) create or incur any Lien on any Asset, other than in the ordinary course of business consistent with past practice, Permitted Liens and Liens securing Indebtedness under the Existing Credit Agreements;
(g) declare, set aside or pay any dividend or other distribution with respect to the capital stock of the Company;
(h) merge or consolidate with any other Person or acquire a material amount of stock or assets of any other Person or effect any business combination, recapitalization or similar transaction (other than the Merger);
(i) (A) except in the ordinary course of business consistent with past practice (including extensions at the end of a term in the ordinary course of business consistent with past practice), transfer or terminate, or materially modify or amend, or (B) release, assign or otherwise change any material rights under or (C) waive any material right under or discharge any other party of any material obligation under, any Material Contract or (ii) enter into any Material Contract other than those described in clauses (v), (viii), (xii), (xiv), (xviii) or (xix) (to the extent permitted by clause (n) below) of Section 3.7(a);
(j) make any material loan, advance or capital contribution to or investment in any Person other than loans, advances or capital contributions to or investments in the Subsidiaries in the ordinary course of business consistent with past practice;
(k) acquire any real property or any direct or indirect interest in any real property;
(l) make any material change to its accounting policies or practices, except as required by GAAP or applicable Law;
(m) make, change or revoke any material Tax election, change any Tax accounting period or any material method of Tax accounting, amend any material Tax Returns or file any claims for material Tax refunds, enter into any closing agreement, settle or compromise any material Tax claim, audit, assessment or other proceeding or surrender any right to claim a material Tax refund, offset or other reduction in Tax liability;
(n) fail to make capital expenditures in the amounts and for the purposes set forth in the Company’s capital expenditures budget existing as of the date of this Agreement, or make any other capital expenditures or commitments for capital expenditures in an amount in excess of $500,000 in the aggregate;
(o) forgive, cancel or compromise any material debt or claim, or waive, release or assign any right or claim of material value, other than in the ordinary course of business consistent with past practice;
(p) fail to pay or satisfy any material account payable or other liability incurred in the ordinary course of business consistent with past practice (including in each case, the timing of any such payments), other than any such liability that is being contested by the Company or the Subsidiaries in good faith;
(q) make any material payments, grant material discounts or any other consideration to customers or suppliers, other than in the ordinary course of business consistent with past practice;
(r) make any material changes in the management of Working Capital, other than in the ordinary course of business consistent with past practice;
(s) settle or compromise any material Litigation;
(t) adopt or enter into a plan or agreement a reasonable time in advance of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the proposed effective date thereofCompany or any of the Subsidiaries (other than the Merger);
(u) grant, modify, cancel, abandon, dispose of or terminate, or agree to grant, modify, cancel, abandon, dispose of or terminate, any rights, or enter into any contract (other than licenses for immaterial, commercially available, non-customized software), relating to any Intellectual Property used or held for use in the business of the Company and the Purchaser shall have three (3) Business Days in which to respond in writing either affirmatively Subsidiaries, or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent otherwise permit any of their rights relating to any such transactionIntellectual Property to lapse; or
(v) authorize any of, agreement or other action be unreasonably withheldagree or commit to do any of, the foregoing actions.
Appears in 1 contract
Preservation of Business. (a) From the Date date of this Agreement until the Closing Date, the Seller (i) Contributors and the Title Holding Entities shall operate use their commercially reasonable efforts to cause the Properties to be operated only in the Ordinary Course ordinary and usual course of Businessbusiness and consistent with past practice and maintained in good working condition and repair (ordinary wear and tear excepted), and shall not, without Purchaser's prior written consent, engage in any transaction outside the Ordinary Course of Business except as otherwise permitted herein, (ii) shall not, without Purchaser's prior written consent, sell or list for sale any of the Properties, (iii) shall use its their commercially reasonable best efforts to preserve the Properties, including the goodwill, going concern value, goodwill and advantageous relationships of the Seller Contributors and the Title Holding Entities with residents, customers, suppliers, independent contractors, employees and other Persons material to the operation of the Properties, (iv) shall use their commercially reasonable efforts to perform its their material obligations under the Leases and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, Properties and (vi) shall not take or permit any action or omission, to the extent such action or omission is within the reasonable control of such Contributor or Title Holding Entity, which would cause any of the representations or warranties of the Contributors and the Title Holding Entities contained herein to become inaccurate or any of the covenants of the Contributors and the Title Holding Entities herein to be breached.
(b) From the date of this Agreement until the Closing Date, Cabot Partners shall use its commercially reasonable efforts to operate its business only in the ordinary and usual course of business and consistent with past practice and shall maintain its properties and assets in good working condition and repair (ordinary wear and tear excepted), shall use its commercially reasonable efforts to preserve the goodwill and advantageous relationships of Cabot Partners with clients, suppliers, independent contractors, employees and other Persons material to its business as now conducted, shall use its commercially reasonable efforts to perform its material obligations under any material agreements affecting its business and shall not take or permit any action or omission, to the extent such action or omission is within the reasonable control of Cabot Partners, which would cause any of its representations or warranties contained herein to become inaccurate in any material respect or any of the its covenants made by it herein to be breached in any material respect. Without limiting the foregoing, without the Purchaser's prior written consent, the Seller will not cause or permit any default to occur under the Existing Debt or cause or permit any increase in the outstanding aggregate principal balance thereof from the Date of this Agreement until the Closing. The Seller shall continue to maintain all insurance policies in full force and effect up to and including the Closing Date. If the Seller contemplates entering into any transaction or agreement or taking any other action requiring the Purchaser's prior written consent under this Agreement, then the Seller shall give the Purchaser notice of such proposed transaction or agreement a reasonable time in advance of the proposed effective date thereof, and the Purchaser shall have three (3) Business Days in which to respond in writing either affirmatively or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheldbreached.
Appears in 1 contract
Preservation of Business. From Except as expressly permitted by this Agreement or as set forth in Section 5.1 of the Date Xxxxx Disclosure Schedule, during the period from the date of this Agreement until to the Closing DateEffective Time, Xxxxx and the Seller Xxxxx Subsidiaries shall (i) shall operate the Properties only in the Ordinary Course conduct their operations according to their ordinary and usual course of Business, business and shall not, without Purchaser's prior written consent, engage in any transaction outside the Ordinary Course of Business except as otherwise permitted herein, consistent with past practice (ii) shall not, without Purchaser's prior written consent, sell or list for sale any use commercially reasonable efforts to preserve intact in all material respects the business organization of the PropertiesXxxxx, (iii) shall use make all commercially reasonable efforts consistent with past practices to keep its reasonable best efforts physical assets in good working condition, to preserve, maintain the value of, renew, extend and keep in full force and effect all Intellectual Property Rights, to keep available the services of its current officers and employees and to preserve the PropertiesXxxxx’x and each Xxxxx Subsidiary’s relationships with lenders, including the goodwillcreditors, going concern valuelessors, and advantageous relationships of the Seller with residentslessees, licensors, licensees, officers, employees, contractors, distributors, developers, vendors, clients, customers, suppliers, independent contractors, employees and suppliers or other Persons having a material to the operation of the Propertiesbusiness relationship with Xxxxx or any Xxxxx Subsidiary, (iv) shall perform its material obligations under without limiting clause (iii), continue to maintain, prosecute, protect, enforce and defend all Intellectual Property Rights, with the Leases and other material agreements affecting the Propertiesexception of Intellectual Property rights purchased from 3M, (v) shall perform its material obligations under use best efforts to continue to maintain, prosecute, protect, enforce and defend all ContractsIntellectual Property Rights purchased from 3M, and (vi) shall not take comply with all applicable Laws and Judgments. Without limiting the generality of the foregoing, and except as expressly permitted by this Agreement or permit as set forth in the Section 5.1 of the Xxxxx Disclosure Schedule, prior to the Effective Time, neither Xxxxx nor any action of the Xxxxx Subsidiaries, as the case may be, will, without the prior written consent of Acquiror:
(a) issue, sell or omission which would cause pledge, or authorize or propose the issuance, sale or pledge of, additional shares of its capital stock or securities convertible into any such shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or any stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Xxxxx Shares or the value of Xxxxx or any part thereof, other than Xxxxx Shares that may be issuable pursuant to the Xxxxx Options and the Xxxxx Warrants;
(b) split, combine, subdivide, reclassify or redeem, or purchase or otherwise acquire, or propose to do any of the foregoing with respect to, any of its representations outstanding securities;
(c) declare, set aside or warranties contained herein to become inaccurate pay any dividend on, or make any other distribution in any form in respect of, the Xxxxx Shares;
(d) purchase or otherwise acquire, sell or otherwise dispose of or encumber (or enter into any agreement to so purchase or otherwise acquire, sell or otherwise dispose of or encumber) material properties or material assets except in the ordinary course of business;
(e) acquire or agree to acquire by merging or consolidating with, or by purchasing all or a substantial portion of the assets of, or by purchasing all or a substantial portion of the capital stock of, or by any other manner, any business or any other Person or any division thereof;
(f) amend any of the charter documents, bylaws or other governing documents of Xxxxx or the Xxxxx Subsidiaries;
(g) except as required to comply with applicable Law or any Employee Benefit Plan as in effect on the date of this Agreement, (i) increase the compensation (other than compensation increases in the ordinary course of business) of any of its directors, officers, employees, or consultants, (ii) pay or agree to pay to any directors, officers, employees or consultants any bonus, other amount, or other benefit, or make any advance or loan to any such Person, other than the payment of base compensation or advances for business expenses in the ordinary course of business (iii) grant any awards under any Employee Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock or the removal of existing restrictions in any Employee Benefit Plan or awards made thereunder), (iv) take any action to fund or in any other way secure the payment of compensation or benefits under any Employee Benefit Plan, (v) take any action to accelerate the vesting or payment of any compensation or benefit under any Employee Benefit Plan, (vi) adopt, enter into or amend any Employee Benefit Plan, or (vii) make any material determination under any Employee Benefit Plan that not in the ordinary course of business;
(h) repurchase, prepay, create, incur or assume any indebtedness (including obligations in respect of capital leases), issue or sell, or amend, modify or change any term of, any debt securities or options, warrants, calls or other rights to acquire any debt securities of Xxxxx or any Xxxxx Subsidiary, assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for any indebtedness of another Person, make any loans, advances or capital contributions to, or investments in, any Person other than Xxxxx or any Xxxxx Subsidiary, enter into any “keep well” or other Contract to maintain any financial statement condition of another Person, or enter into any Contract having the economic effect of any of the foregoing; or
(i) purchase, redeem or otherwise acquire any shares of its capital stock, or any option, warrant, call or right relating to such shares, interests or other securities (including any Xxxxx Options);
(j) change its fiscal year, revalue any of its material assets or make any changes in financial accounting methods, principles, practices or policies, except as required by GAAP or applicable Law;
(k) except as required by applicable Law, (i) make or change any Tax election; (ii) change any Tax accounting period or method; (iii) file any amended Tax Return; (iv) enter into any closing agreement with respect to Taxes; (v) settle any Tax claim or assessment; (vi) surrender any right to claim a refund of Taxes; (vii) consent to any extension or waiver of the limitations period for the assessment of any Tax; (viii) take any action outside the ordinary course of business consistent with past practice whose effect would be to increase Xxxxx’x or any Xxxxx Subsidiary’s present or future Tax liability or to decrease Xxxxx’x or any Xxxxx Subsidiary’s present or future Tax assets;
(l) enter into any lease or sublease of real property (whether as a lessor, sublessor, lessee or sublessee) or modify, amend, terminate or fail to exercise any right to renew any lease or sublease of real property;
(m) except to the extent otherwise expressly required by this Agreement or consistent with the Budget and Operating Plan, incur or commit to incur any expenditure (or any obligation or liability) in excess of $50,000 individually or $150,000 in the aggregate;
(n) enter into any Contract (or any substantially related Contracts, taken together)
(i) that would be a Xxxxx Contract, except that Xxxxx may enter into the Contract referred to in Section 5.1(n) of the Xxxxx Disclosure Schedule, (ii) if consummation of the Offer, the Merger or any of the covenants made other transactions contemplated hereby or compliance by it to be breached in any material respect. Without limiting Xxxxx with the foregoing, without the Purchaser's prior written consent, the Seller will not cause or permit any default to occur under the Existing Debt or cause or permit any increase in the outstanding aggregate principal balance thereof from the Date provisions of this Agreement until will conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation or to a loss of a benefit under, or result in the Closing. The Seller shall continue creation of any Lien in or upon any of the properties or assets of Xxxxx, any Xxxxx Subsidiary or Acquiror or any of its subsidiaries under, or give rise to maintain any increased, additional, accelerated or guaranteed rights or entitlements under, any provision of such Contract, or (iii) containing any restriction on the ability of Xxxxx or any of the Xxxxx Subsidiaries to assign all insurance policies or any portion of its rights, interests or obligations thereunder, unless such restriction expressly permits any assignment to Acquiror or any of its subsidiaries in full force connection with or following the consummation of the Merger and effect up the other transactions contemplated hereby;
(o) waive, release or assign any rights or claims under, fail to take a required action under, permit the lapse of or default under, or modify, amend or terminate any Xxxxx Contract;
(p) pay, discharge, settle or satisfy any claims (including claims of stockholders and including any stockholder litigation relating to the Closing Date. If Offer, the Seller contemplates entering Merger or any other transaction contemplated hereby), liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice;
(q) take any action (or omit to take any action) if such action (or omission) would or could reasonably be expected to result in any of the conditions to the obligation of Acquiror to consummate the Merger set forth in Article VI and the conditions to consummate the Offer in Annex A not being satisfied or materially delay such satisfaction;
(r) except as required by applicable Law, adopt or enter into any transaction or agreement or taking any other action requiring the Purchaser's prior written consent under this Agreement, then the Seller shall give the Purchaser notice of such proposed transaction or agreement a reasonable time in advance of the proposed effective date thereof, and the Purchaser shall have three (3) Business Days in which to respond in writing either affirmatively or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, collective bargaining agreement or other action be unreasonably withheldlabor union Contract applicable to any officer, director, employee of Xxxxx or any of the Xxxxx Subsidiaries or terminate the employment of any such Person that has an employment, severance or similar agreement or Contract with Xxxxx or any of the Xxxxx Subsidiaries;
(s) discharge or satisfy any Lien or pay any obligation or liability other than in the ordinary course of business consistent with past practice;
(t) fail to maintain insurance coverage at levels consistent with presently existing levels;
(u) commence, participate or agree to commence or participate in any bankruptcy, voluntary liquidation, dissolution, winding up, examinership, insolvency or similar proceeding in respect of Xxxxx or any Xxxxx Subsidiary;
(v) create or have any subsidiary of Xxxxx, other than the Xxxxx Subsidiaries;
(w) engage in any business or business activity other than the business and business activities currently conducted; or
(x) authorize any of, or commit, resolve or agree, whether in writing or otherwise, to take any of, the actions listed above in this Sections 5.1.
Appears in 1 contract
Samples: Merger Agreement (Coley Pharmaceutical Group, Inc.)
Preservation of Business. From the Date of this Agreement until the Closing Date, the Seller (i) shall operate the Properties only in the Ordinary Course of Business, and shall not, without Purchaser's prior written consent, engage in any transaction outside the Ordinary Course of Business except as otherwise permitted herein, (ii) shall not, without Purchaser's prior written consent, sell or list for sale any of the Properties, (iii) Arcar shall use its reasonable best efforts to preserve carry on the PropertiesArcar Business diligently and substantially in the same manner as heretofore conducted and shall keep the business organization of the Arcar Business intact, including the goodwillits present business operations, going concern valuephysical facilities, working conditions and advantageous relationships of the Seller with residents, customers, suppliers, independent contractors, employees and other Persons material its present relationships with suppliers and customers and others having business relations with it, except as otherwise consented to the operation of the Properties, (iv) shall perform its material obligations under the Leases and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, and (vi) shall not take or permit any action or omission which would cause any of its representations or warranties contained herein to become inaccurate in any material respect or any of the covenants made by it to be breached in any material respectBuyer. Without limiting the generality of the foregoing,
a) Arcar shall conduct and carry on the Arcar Business and affairs only in the ordinary and regular course, and, without limiting the foregoing, without shall not accelerate the Purchaser's prior written consent, collection of receivables or defer the Seller will not cause or permit any default payment of payables.
b) Arcar shall use its best efforts to occur under keep available to Buyer and the Existing Debt or cause or permit any increase in Arcar Business the outstanding aggregate principal balance thereof from services of the Date present employees and agents of this Agreement until the Closing. The Seller shall continue Arcar Business and to maintain all insurance policies and cause the Arcar Business to maintain and preserve the relations and goodwill with suppliers, customers, distributors and any others having business relations with the Arcar Business.
c) Arcar shall not increase or otherwise change the rate or nature of the compensation (including, without limitation, wages, salaries, bonuses and other benefits) which is paid or payable to any director, officer or employee of Arcar.
d) Arcar shall maintain in full force and effect up to policies of insurance of the same type, character and including coverage as the policies of insurance listed in Schedule 4.17; and Arcar shall give Buyer prompt written notice of any and all changes which may occur between the date hereof and the Closing Date. If Date with respect to the Seller contemplates entering into insurance coverages of Arcar.
e) Except as required by law or the terms of its agreements, Arcar shall not cause the Arcar Business to make any transaction loans, advances or agreement capital contributions to, or taking investments in, or declare any other action requiring dividends or make any payments to, any person or entity.
f) On or before the Purchaser's prior written consent under this AgreementClosing, then Bagcraft shall cause to be paid to Arcar any Accounts Receivable owed by Bagcraft which is more than 45 days old.
g) Immediately notify Buyer of any deviation or exception from the Seller shall give the Purchaser notice of such proposed transaction or agreement a reasonable time commitments set forth in advance of the proposed effective date thereof, and the Purchaser shall have three (3a) Business Days in which to respond in writing either affirmatively or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheldthrough (f) above.
Appears in 1 contract
Preservation of Business. From the Date date of this Agreement until the Closing Date, the Seller (i) Company and the Subsidiaries shall, and Stockholders shall cause the Company and the Subsidiaries to, operate the Properties only in the Ordinary Course ordinary and usual course of Businessbusiness and consistent with past practice, and shall not, without Purchaser's prior written consent, engage in any transaction outside utilize their commercially reasonable efforts to (a) preserve intact the Ordinary Course present business organization and personnel of Business except as otherwise permitted hereinthe Company and each Subsidiary, (iib) shall not, without Purchaser's prior written consent, sell or list for sale any of the Properties, (iii) shall use its reasonable best efforts to preserve the Properties, including the goodwill, going concern value, good will and advantageous relationships of the Seller Company and the Subsidiaries with residents, customers, suppliers, employees, independent contractors, employees contractors of the Company and the Subsidiaries and other Persons material to the operation of the Propertiestheir business, (ivc) shall perform its material obligations under the Leases and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, and (vi) shall not take or permit any action or omission which would cause any of its the representations or warranties of the Company or Stockholders contained herein to become inaccurate in any material respect or any of the covenants made by it of the Company or Stockholders to be breached in any material respectbreached. Without limiting the generality of the foregoing, except as set forth in Schedule 5.3, prior to the Closing the Company or any Subsidiary shall not, and Stockholders will not permit the Company or any Subsidiary to, without the Purchaser's prior written consentconsent of Purchaser:
(i) take any action, or enter into or authorize any Contract or transaction, other than in the Seller will not cause ordinary course of business and consistent with past practice;
(ii) sell, transfer, convey, assign or otherwise dispose of any of its assets or properties, other than (A) the Bankstream Assets or (B) other assets or properties in the ordinary course of business consistent with past practice; provided, that the documents transferring the Bankstream Assets shall be approved by Purchaser;
(iii) waive, release or cancel any material claims against third parties or debts owing to it, or any rights which have any substantial value;
(iv) make any changes in its accounting systems, policies, principles, practices or methods;
(v) enter into, authorize or permit any default transaction with any Stockholder or any Affiliate thereof, except in the ordinary course of business consistent with past practice;
(vi) authorize for issuance, issue, sell, deliver or agree or commit to occur under issue, sell or deliver (whether through the Existing Debt issuance or cause granting of options, warrants, convertible or permit exchangeable securities, commitments, subscriptions, rights to purchase or otherwise) any shares of capital stock or capital interests or any other securities of the Company or any Subsidiary, or amend any of the terms of any such capital stock or capital interest or other securities;
(vii) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock or capital interests, or redeem or otherwise acquire any capital stock or capital interests or other securities of the Company or any Subsidiary, other than the Bankstream Assets;
(viii) make any borrowings, incur any debt (other than trade payables in the ordinary course of business and consistent with past practice), or assume, guarantee, endorse (except for the negotiation or collection of negotiable instruments in the ordinary course of business and consistent with past practice) or otherwise become liable (whether directly, contingently or otherwise) for the obligations of any other Person, or make any payment or repayment in respect of any indebtedness (other than trade payables, accrued expenses and payments of indebtedness existing on the date of the Latest Balance Sheet, in each case in the ordinary course of business and consistent with past practice);
(ix) make any loans, advances or capital contributions to, or investments in, any other Person, other than loans or advances to employees in the ordinary course of business and consistent with past practice;
(x) except as contemplated by Section 5.14, enter into, adopt, amend, modify or terminate any Company Employee Plan, or increase in any manner the outstanding compensation or fringe benefits of any current or former director, officer or employee of the Company or any Subsidiary, except pursuant to Contracts in force on the date hereof, or pay any benefit not required by any Company Benefit Plan or enter into any Contract or informal understanding to do any of the foregoing;
(xi) acquire, lease or encumber any assets outside the ordinary course of business or any assets that are material to the Company or any Subsidiary;
(xii) authorize or make any capital expenditures for which the Company or any Subsidiary will have any continuing obligation after the Closing and which individually or in the aggregate principal balance thereof from are in excess of $50,000;
(xiii) make any Tax election or settle or compromise any federal, state, local or foreign income Tax liability, or waive or extend the Date statute of this Agreement until limitations or period for assessment in respect of any such Taxes;
(xiv) pay any amount, perform any obligation or agree to pay any amount or perform any obligation, in settlement or compromise of any suits or claims of liability against the Company or any Subsidiary or any of their respective directors, officers, employees or agents, which individually are in excess of $50,000 or for which the Company or any Subsidiary will have any continuing obligation (monetary or otherwise) after the Closing. The Seller shall continue to maintain all insurance policies in full force and effect up to and including the Closing Date. If the Seller contemplates entering into ; or
(xv) terminate, modify, amend or otherwise alter or change any transaction or agreement or taking any other action requiring the Purchaser's prior written consent under this Agreement, then the Seller shall give the Purchaser notice of such proposed transaction or agreement a reasonable time in advance of the proposed effective date thereofterms or provisions of any Contract, other than in the ordinary course of business and the Purchaser shall have three (3) Business Days in which to respond in writing either affirmatively or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheldconsistent with past practices.
Appears in 1 contract
Preservation of Business. From and after the Date of this Agreement date hereof until the Closing Date, each Seller shall cause the Seller (i) shall Company and its Subsidiaries to operate the Properties only in the Ordinary Course ordinary and usual course of Businessbusiness and consistent with past practice, and shall not, without Purchaser's prior written consent, engage in any transaction outside shall: (a) preserve intact the Ordinary Course of Business except as otherwise permitted herein, (ii) shall not, without Purchaser's prior written consent, sell or list for sale any present business organization and personnel of the Properties, Company and its Subsidiaries; (iiib) shall use its reasonable best efforts to preserve the Properties, including the goodwill, going concern value, goodwill and advantageous relationships of the Seller Company and its Subsidiaries with residents, customers, suppliers, independent contractors, members, managers, employees and other Persons material to the operation of the Properties, its businesses; (ivc) shall perform preserve in full force and effect its material obligations under the Leases permits and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, licenses; and (vid) shall not take or permit any action or omission which that would cause any of its the representations or warranties of any Seller or the Company contained herein to become inaccurate in any material respect or any of the covenants made by it of any Seller or the Company to be breached in any material respectbreached. Without limiting the generality of the foregoing, without from the Purchaser's prior written consentdate hereof until the Closing Date, the Seller will Company shall not, and shall not cause or permit any default of its Subsidiaries to, without the prior written consent of Purchaser:
(i) waive, release or cancel any claims against third parties or debts owing to occur under it, or any rights which have any value;
(ii) make any changes in its accounting systems, policies, principles or practices;
(iii) make any payment of any Xxxxxxxx Sales Commissions; make any payment to Xxxxxx Xxxxxxx, make any payment to Xxxxxxx X. Xxxxxxxx in excess of $269,231 (including the Existing Debt or cause February, 2001 payment for vacation pay); enter into, authorize, or permit any increase transaction with any Seller, any Corporation, or any Affiliate of any Seller or any Corporation or pay any dividend or make any other distribution in respect of the Membership Interests, in each case other than (1) payments contemplated by Section 8.13 and (2) scheduled payments to Xxxxxx Ventures, LLC, Xxxxxx Aviation, LLC, Xxxxxx Properties Inc. and Xxxxxx-Xxxxxxxxxx LLC as required by the terms of agreements as in effect on March 20, 2001 and disclosed to Parent and Purchaser prior to such date;
(iv) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise) any Membership Interests or any other securities of the Company or any Subsidiary of the Company, or amend any of the terms of any Membership Interests or such other securities;
(v) amend the Operating Agreement, split, combine, or reclassify any Membership Interests (or any other securities), declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Membership Interests (or any other securities), or redeem or otherwise acquire any Membership Interests (or any other securities) of the Company or any Subsidiary of the Company, in each case other than the distributions described on Schedule 6.10; (vi) make any borrowings, incur any Indebtedness or assume, guarantee, endorse (except for the negotiation or collection of negotiable instruments in the outstanding aggregate principal balance thereof from ordinary course of business and consistent with past practice) or otherwise become liable (whether directly, indirectly or contingently) for the Date obligations or Indebtedness of this Agreement until the Closing. The Seller shall continue to maintain all insurance policies in full force and effect up to and including the Closing Date. If the Seller contemplates entering into any transaction or agreement or taking any other action requiring Person, or make any payment or repayment in respect of any obligations or Indebtedness, other than (A) accrued expenses in the Purchaser's prior written consent under this Agreement, then the Seller shall give the Purchaser notice ordinary course of such proposed transaction or agreement a reasonable time in advance of the proposed effective date thereofbusiness and consistent with past practice, and (B) drawings under existing loan commitments in the Purchaser shall have three (3ordinary course of business and consistent with past practice and in amounts consistent with the representation in Section 4.6(b) Business Days and the condition in which to respond in writing either affirmatively or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheld.Section 8.10;
Appears in 1 contract
Preservation of Business. From the Date of this Agreement until date hereof to the Closing DateClosing, the Seller Sellers shall use their commercially reasonable efforts (i) shall operate the Properties only in the Ordinary Course of Business, and shall not, without Purchaser's prior written consent, engage in any transaction outside the Ordinary Course of Business except as otherwise permitted herein, (ii) shall not, without Purchaser's prior written consent, sell or list for sale any of the Properties, (iii) shall use its their commercially reasonable best efforts to cause the Acquired Companies and the Subsidiaries to):
(a) preserve the Properties, including Business and its properties intact;
(b) keep available to the goodwill, going concern value, and advantageous relationships Business the services of the Seller employees of the Business listed in Section 6.2 of the Disclosure Letter;
(c) preserve the Business' relationships with residents, customers, suppliers, independent licensors, licensees, contractors, employees distributors and other Persons others having material business dealings with the Business including under Material Agreements;
(d) preserve the Business Intellectual Property and the goodwill of the Business including the payment of all maintenance and renewal fees which come due prior to Closing;
(e) enforce the rights in the Business Intellectual Property against third parties;
(f) continue to maintain, in all material respects, the Acquired Assets and the assets of the Acquired Companies and Subsidiaries; and
(g) maintain all files, books and records with respect to the operation Business. 66 None of the Properties, (iv) shall perform its material obligations under the Leases and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, and (vi) shall not Sellers will take or permit any action (and Sellers shall cause their Affiliates not to take any action) that is designed or omission which would cause intended to have the effect of discouraging any of its representations lessor, licensor, customer, supplier, or warranties contained herein to become inaccurate in any material respect or any other business associate of the covenants made by it to be breached in any material respect. Without limiting the foregoing, without the Purchaser's prior written consentBusiness, the Seller will not cause Acquired Companies or permit any default the Subsidiaries from maintaining the same business relationships with the Business, the Acquired Companies or the Subsidiaries after the Closing as it maintained with the Business, the Acquired Companies or the Subsidiaries prior to occur under the Existing Debt or cause or permit any increase in the outstanding aggregate principal balance thereof from the Date of this Agreement until the Closing. The Seller shall continue to maintain all insurance policies in full force From and effect up to and including after the Closing Date. If the Seller contemplates entering into any transaction or agreement or taking any other action requiring the Purchaser's prior written consent under this AgreementClosing, then the Seller shall give the Purchaser notice of such proposed transaction or agreement a reasonable time in advance each of the proposed effective date thereof, Sellers will (and shall cause their Affiliates to) refer all customer inquiries relating to the Business to the Buyer and the Purchaser Buyer and its Affiliates shall have three (3) Business Days in which refer all customer inquiries regarding the Sellers' retained business to respond in writing either affirmatively or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheldSellers.
Appears in 1 contract
Samples: Purchase Agreement (Revlon Inc /De/)
Preservation of Business. (a) From the Date date of this Agreement until the Closing DateClosing, Parent shall cause the Seller Subject Entities to operate only in the ordinary and usual course of business and consistent with past practice, and shall use reasonable best efforts to (i) shall operate preserve intact the Properties only in present business organization and personnel of the Ordinary Course of Business, Subject Entities and shall not, without Purchaser's prior written consent, engage in any transaction outside the Ordinary Course of Business except as otherwise permitted hereinFunds, (ii) shall not, without Purchaser's prior written consent, sell or list for sale any of the Properties, (iii) shall use its reasonable best efforts to preserve the Properties, including the goodwill, going concern value, goodwill and advantageous relationships of the Seller Subject Entities and Funds with residents, customers, suppliers, employees, independent contractors, employees contractors and other Persons material to the operation of the Propertiestheir respective businesses, (iii) prevent any event that could have a Material Adverse Effect and (iv) shall perform its material obligations under the Leases and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, and (vi) shall not take or permit any action or omission which that would cause any of its the representations or warranties of any Seller or Parent contained herein or in any of its Related Agreements to become inaccurate in any material respect or any of the covenants made by it of any Seller or Parent contained herein or in any of its Related Agreements to be breached breached; provided, however, that anything contained in any material respect. this Section 7.3 notwithstanding, (x) the Asset Sellers and Shareholders shall be entitled to distribute to Parent, immediately prior to the Closing, an amount in Cash equal to the Sellers’ good faith estimate of the amount by which the Net Asset Amount will exceed $150 million as of the Closing and (y) the Asset Sellers and Shareholders shall be entitled to take such actions, after consultation with and upon the prior approval of Purchaser, as are outlined on Schedule 7.3(a) hereto in order to effect the transfer of certain Assets into CIS Limited prior to the Closing.
(b) Without limiting the foregoinggenerality of Section 7.3(a), prior to the Closing, Parent shall not permit any Asset Seller, any Acquired Corporation, any Acquired Corporation Subsidiary or any Fund to, without the Purchaser's prior written consentconsent of Purchaser:
(i) incur any obligation or enter into any Contract that would be required to be disclosed on Schedule 5.14 or Schedule 5.15;
(ii) take any action, or enter into or authorize any Contract or transaction, other than in the Seller will not cause ordinary course of business and consistent with past practice;
(iii) sell, transfer, convey, assign or otherwise dispose of any of its assets or properties, except sales of inventory in the ordinary course of business and consistent with past practice;
(iv) except as set forth on Schedule 7.3(b)(iv), waive, release, settle or cancel any claims against third parties or debts owing to it, or any rights that have any value;
(v) make any changes in its accounting systems, policies, principles, practices or methods;
(vi) enter into, authorize or permit any default to occur under transaction with any other Subject Entity or any Affiliate of any Subject Entity other than in the Existing Debt or cause ordinary course of business and consistent with past practice;
(vii) suffer or permit the creation of any Lien over any assets of any Subject Entity (including, with respect to the Asset Sellers, any of the Assets);
(viii) make any borrowings, incur any debt (other than trade payables in the ordinary course of business and consistent with past practice), or assume, guarantee, endorse (except for the negotiation or collection of negotiable instruments in the ordinary course of business and consistent with past practice) or otherwise become liable (whether directly, contingently or otherwise) for the obligations of any other Person, or make any payment or repayment in respect of any indebtedness (other than trade payables, indebtedness pursuant to subordinated loans, and accrued expenses in the ordinary course of business and consistent with past practice);
(ix) make any loans, advances or capital contributions to, or investments in, any other Person;
(x) terminate any employee or hire any individual to be employed by any Subject Entity;
(xi) enter into, adopt, amend or terminate any bonus, profit sharing, compensation, termination, stock option, stock appreciation right, restricted stock, performance unit, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee, or increase in any manner the outstanding compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any existing plan and arrangement or enter into any Contract, agreement, commitment or arrangement to do any of the foregoing;
(xii) except for capital expenditures contemplated by clause (xiii) below, acquire, lease or encumber any assets outside the ordinary course of business or any assets that are material to any Subject Entity;
(xiii) authorize or make any capital expenditures that individually or in the aggregate principal balance thereof from are in excess of $100,000;
(xiv) file any amended Tax Return or any claim for refund of Taxes, amend any payment of Taxes paid by or on behalf of any Subject Entity or any Fund, waive or extend the Date statute of this Agreement until limitations in respect of any Taxes, make, revoke, or amend any Tax election (other than the contemplated election to treat CIS Limited as a branch of Xxxxxxx PLC for United States federal income tax purposes), change any method of Tax accounting or Tax procedure or practice, or settle or compromise any claim relating to Taxes;
(xv) pay any amount, perform any obligation or agree to pay any amount or perform any obligation, in settlement or compromise of any suit or claim of liability against any Subject Entity or any of its directors, officers, employees or agents;
(xvi) terminate, modify, amend or otherwise alter or change any of the terms or provisions of any Contract (other than immaterial modifications to customer contracts in the ordinary course of business and consistent with past practice), or pay any amount not required by Law or by any Contract; or
(xvii) agree, whether in writing or otherwise, to do any of the foregoing.
(c) Without limiting the generality of Section 7.3(a), except as set forth on Schedule 7.3(c), prior to the Closing. The Seller , Parent shall continue to maintain all insurance policies in full force and effect up to and including not permit any Acquired Corporation or any Acquired Corporation Subsidiary to, without the Closing Date. If the Seller contemplates entering into any transaction or agreement or taking any other action requiring the Purchaser's prior written consent under this Agreementof Purchaser:
(i) authorize for issuance, then issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the Seller shall give the Purchaser notice issuance or granting of such proposed transaction options, warrants, convertible or agreement a reasonable time in advance exchangeable securities, commitments, subscriptions, rights to purchase or otherwise) any shares of its capital stock or any other securities of the proposed effective date Acquired Corporations or any Acquired Corporation Subsidiary, or amend any of the terms of any such capital stock or other securities;
(ii) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, and or redeem or otherwise acquire any capital stock or other securities of the Purchaser shall have three Acquired Corporations or any Acquired Corporation Subsidiary;
(3iii) Business Days merge into or with or consolidate with any other Person;
(iv) make any change in which to respond the Articles of Incorporation, by-laws or similar organizational instruments of the Acquired Corporations or any Acquired Corporation Subsidiary; or
(v) agree, whether in writing either affirmatively or negatively. If otherwise, to do any of the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheldforegoing.
Appears in 1 contract
Preservation of Business. From and after the Date of this Agreement date hereof ------------------------ until the Closing Date, each Seller shall cause the Seller (i) shall Company and its Subsidiaries to operate the Properties only in the Ordinary Course ordinary and usual course of Businessbusiness and consistent with past practice, and shall not, without Purchaser's prior written consent, engage in any transaction outside shall: (a) preserve intact the Ordinary Course of Business except as otherwise permitted herein, (ii) shall not, without Purchaser's prior written consent, sell or list for sale any present business organization and personnel of the Properties, Company and its Subsidiaries; (iiib) shall use its reasonable best efforts to preserve the Properties, including the goodwill, going concern value, goodwill and advantageous relationships of the Seller Company and its Subsidiaries with residents, customers, suppliers, independent contractors, members, managers, employees and other Persons material to the operation of the Properties, its businesses; (ivc) shall perform preserve in full force and effect its material obligations under the Leases permits and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, licenses; and (vid) shall not take or permit any action or omission which that would cause any of its the representations or warranties of any Seller or the Company contained herein to become inaccurate in any material respect or any of the covenants made by it of any Seller or the Company to be breached in any material respectbreached. Without limiting the generality of the foregoing, without from the Purchaser's prior written consentdate hereof until the Closing Date, the Seller will Company shall not, and shall not cause or permit any default of its Subsidiaries to, without the prior written consent of Purchaser:
(i) waive, release or cancel any claims against third parties or debts owing to occur under it, or any rights which have any value;
(ii) make any changes in its accounting systems, policies, principles or practices;
(iii) make any payment of any Xxxxxxxx Sales Commissions; make any payment to Xxxxxx Xxxxxxx, make any payment to Xxxxxxx X. Xxxxxxxx in excess of $269,231 (including the Existing Debt or cause February, 2001 payment for vacation pay); enter into, authorize, or permit any transaction with any Seller, any Corporation, or any Affiliate of any Seller or any Corporation or pay any dividend or make any other distribution in respect of the Membership Interests, in each case other than (1) payments contemplated by Section 8.13 and (2) scheduled payments to Xxxxxx Ventures, LLC, Xxxxxx Aviation, LLC, Xxxxxx Properties Inc. and Xxxxxx-Xxxxxxxxxx LLC as required by the terms of agreements as in effect on March 20, 2001 and disclosed to Parent and Purchaser prior to such date;
(iv) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise) any Membership Interests or any other securities of the Company or any Subsidiary of the Company, or amend any of the terms of any Membership Interests or such other securities;
(v) amend the Operating Agreement, split, combine, or reclassify any Membership Interests (or any other securities), declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Membership Interests (or any other securities), or redeem or otherwise acquire any Membership Interests (or any other securities) of the Company or any Subsidiary of the Company, in each case other than the distributions described on Schedule 6.10; -------------
(vi) make any borrowings, incur any Indebtedness or assume, guarantee, endorse (except for the negotiation or collection of negotiable instruments in the ordinary course of business and consistent with past practice) or otherwise become liable (whether directly, indirectly or contingently) for the obligations or Indebtedness of any other Person, or make any payment or repayment in respect of any obligations or Indebtedness, other than (A) accrued expenses in the ordinary course of business and consistent with past practice, and (B) drawings under existing loan commitments in the ordinary course of business and consistent with past practice and in amounts consistent with the representation in Section 4.6(b) and the condition in Section 8.10;
(vii) make any loans, advances or capital contributions to, or investments in, any other Person;
(viii) enter into, adopt, amend or terminate any bonus, profit sharing, compensation, termination, stock option, stock appreciation right, restricted stock, performance unit, pension, retirement, deferred compensation, employment, severance or other employee benefit agreements, trusts, plans, funds or other arrangements for the benefit or welfare of any director, officer or employee, or increase in any manner the outstanding aggregate principal balance thereof from the Date compensation or fringe benefits of this Agreement until the Closing. The Seller shall continue to maintain all insurance policies in full force any director, officer, member, manager or employee or pay any benefit not required by any existing plan and effect up to and including the Closing Date. If the Seller contemplates entering arrangement or enter into any transaction contract, agreement, commitment or agreement arrangement to do any of the foregoing, in each case other than increases in compensation and benefits of employees (other than the Sellers) in the ordinary course of business and consistent with past practice;
(ix) acquire or lease any assets outside the ordinary course of business or any assets that are material to the Company and its Subsidiaries, taken as a whole or make any property subject to any Lien whatsoever other than Permitted Liens incurred in the ordinary course of business and consistent with past practice;
(x) make any Tax election or settle or compromise any federal, state, local or foreign Tax liability, or waive or extend the statute of limitations in respect of any such Taxes;
(xi) take or fail to take any actions which would be reasonably likely to prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(xii) authorize or make any capital expenditures which individually or in the aggregate are in excess of $100,000;
(xiii) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) or repay or discharge any Indebtedness other than the payments, discharges or satisfactions, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Latest Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivable) other than collection in the ordinary course;
(xiv) pay any amount, perform any obligation or agree to pay any amount or perform any obligation, in settlement or compromise of any suits or claims of liability against the Company or any of its Subsidiaries or any of their directors, officers, employees or agents;
(xv) terminate, modify, amend or otherwise alter or change any of the terms or provisions of any Contract the terms of which provide for, individually or in the aggregate, amounts to be paid either to or by the Company or any Subsidiary in excess of $100,000, or pay any amount in excess of $100,000 not required by Law or by any Contract, in each case except to the extent expressly contemplated herein and other than, with respect to customer and supply contracts with persons other than Affiliates of the Company or any Seller, in the ordinary course of business and consistent with past practice and in consultation with Purchaser;
(xvi) agree to any repricing, giveback or discount pursuant to or in connection with any Contract; or
(xvii) take any action, or refrain from taking any other action requiring action, that would reasonably be expected to have, individually or in the Purchaser's prior written consent under this Agreementaggregate, then the Seller shall give the Purchaser notice of such proposed transaction or agreement a reasonable time in advance of the proposed effective date thereof, and the Purchaser shall have three (3) Business Days in which to respond in writing either affirmatively or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheldMaterial Adverse Effect.
Appears in 1 contract
Preservation of Business. From Except as expressly permitted by this Agreement or as set forth in Section 5.1 of the Date Xxxxx Disclosure Schedule, during the period from the date of this Agreement until to the Closing DateEffective Time, Xxxxx and the Seller Xxxxx Subsidiaries shall (i) shall operate the Properties only in the Ordinary Course conduct their operations according to their ordinary and usual course of Business, business and shall not, without Purchaser's prior written consent, engage in any transaction outside the Ordinary Course of Business except as otherwise permitted herein, consistent with past practice (ii) shall not, without Purchaser's prior written consent, sell or list for sale any use commercially reasonable efforts to preserve intact in all material respects the business organization of the PropertiesXxxxx, (iii) shall use make all commercially reasonable efforts consistent with past practices to keep its reasonable best efforts physical assets in good working condition, to preserve, maintain the value of, renew, extend and keep in full force and effect all Intellectual Property Rights, to keep available the services of its current officers and employees and to preserve the PropertiesXxxxx’x and each Xxxxx Subsidiary’s relationships with lenders, including the goodwillcreditors, going concern valuelessors, and advantageous relationships of the Seller with residentslessees, licensors, licensees, officers, employees, contractors, distributors, developers, vendors, clients, customers, suppliers, independent contractors, employees and suppliers or other Persons having a material to the operation of the Propertiesbusiness relationship with Xxxxx or any Xxxxx Subsidiary, (iv) shall perform its material obligations under without limiting clause (iii), continue to maintain, prosecute, protect, enforce and defend all Intellectual Property Rights, with the Leases and other material agreements affecting the Propertiesexception of Intellectual Property rights purchased from 3M, (v) shall perform its material obligations under use best efforts to continue to maintain, prosecute, protect, enforce and defend all ContractsIntellectual Property Rights purchased from 3M, and (vi) shall not take comply with all applicable Laws and Judgments. Without limiting the generality of the foregoing, and except as expressly permitted by this Agreement or permit as set forth in the Section 5.1 of the Xxxxx Disclosure Schedule, prior to the Effective Time, neither Xxxxx nor any action of the Xxxxx Subsidiaries, as the case may be, will, without the prior written consent of Acquiror:
(a) issue, sell or omission which would cause pledge, or authorize or propose the issuance, sale or pledge of, additional shares of its capital stock or securities convertible into any such shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or any stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Xxxxx Shares or the value of Xxxxx or any part thereof, other than Xxxxx Shares that may be issuable pursuant to the Xxxxx Options and the Xxxxx Warrants;
(b) split, combine, subdivide, reclassify or redeem, or purchase or otherwise acquire, or propose to do any of the foregoing with respect to, any of its representations outstanding securities;
(c) declare, set aside or warranties contained herein to become inaccurate pay any dividend on, or make any other distribution in any form in respect of, the Xxxxx Shares; Agreement and Plan of Merger
(d) purchase or otherwise acquire, sell or otherwise dispose of or encumber (or enter into any agreement to so purchase or otherwise acquire, sell or otherwise dispose of or encumber) material properties or material assets except in the ordinary course of business;
(e) acquire or agree to acquire by merging or consolidating with, or by purchasing all or a substantial portion of the assets of, or by purchasing all or a substantial portion of the capital stock of, or by any other manner, any business or any other Person or any division thereof;
(f) amend any of the charter documents, bylaws or other governing documents of Xxxxx or the Xxxxx Subsidiaries;
(g) except as required to comply with applicable Law or any Employee Benefit Plan as in effect on the date of this Agreement, (i) increase the compensation (other than compensation increases in the ordinary course of business) of any of its directors, officers, employees, or consultants, (ii) pay or agree to pay to any directors, officers, employees or consultants any bonus, other amount, or other benefit, or make any advance or loan to any such Person, other than the payment of base compensation or advances for business expenses in the ordinary course of business (iii) grant any awards under any Employee Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock or the removal of existing restrictions in any Employee Benefit Plan or awards made thereunder), (iv) take any action to fund or in any other way secure the payment of compensation or benefits under any Employee Benefit Plan, (v) take any action to accelerate the vesting or payment of any compensation or benefit under any Employee Benefit Plan, (vi) adopt, enter into or amend any Employee Benefit Plan, or (vii) make any material determination under any Employee Benefit Plan that not in the ordinary course of business;
(h) repurchase, prepay, create, incur or assume any indebtedness (including obligations in respect of capital leases), issue or sell, or amend, modify or change any term of, any debt securities or options, warrants, calls or other rights to acquire any debt securities of Xxxxx or any Xxxxx Subsidiary, assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for any indebtedness of another Person, make any loans, advances or capital contributions to, or investments in, any Person other than Xxxxx or any Xxxxx Subsidiary, enter into any “keep well” or other Contract to maintain any financial statement condition of another Person, or enter into any Contract having the economic effect of any of the foregoing; or
(i) purchase, redeem or otherwise acquire any shares of its capital stock, or any option, warrant, call or right relating to such shares, interests or other securities (including any Xxxxx Options);
(j) change its fiscal year, revalue any of its material assets or make any changes in financial accounting methods, principles, practices or policies, except as required by GAAP or applicable Law;
(k) except as required by applicable Law, (i) make or change any Tax election; (ii) change any Tax accounting period or method; (iii) file any amended Tax Return; (iv) enter into any closing agreement with respect to Taxes; (v) settle any Tax claim or assessment; (vi) surrender any right to claim a refund of Taxes; (vii) consent to any extension or waiver of the limitations period for the assessment of any Tax; (viii) take any action outside the ordinary course of business consistent with past practice whose effect would be to increase Xxxxx’x or any Xxxxx Subsidiary’s present or future Tax liability or to decrease Xxxxx’x or any Xxxxx Subsidiary’s present or future Tax assets;
(l) enter into any lease or sublease of real property (whether as a lessor, sublessor, lessee or sublessee) or modify, amend, terminate or fail to exercise any right to renew any lease or sublease of real property; Agreement and Plan of Merger
(m) except to the extent otherwise expressly required by this Agreement or consistent with the Budget and Operating Plan, incur or commit to incur any expenditure (or any obligation or liability) in excess of $50,000 individually or $150,000 in the aggregate;
(n) enter into any Contract (or any substantially related Contracts, taken together)
(i) that would be a Xxxxx Contract, except that Xxxxx may enter into the Contract referred to in Section 5.1(n) of the Xxxxx Disclosure Schedule, (ii) if consummation of the Offer, the Merger or any of the covenants made other transactions contemplated hereby or compliance by it to be breached in any material respect. Without limiting Xxxxx with the foregoing, without the Purchaser's prior written consent, the Seller will not cause or permit any default to occur under the Existing Debt or cause or permit any increase in the outstanding aggregate principal balance thereof from the Date provisions of this Agreement until will conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation or to a loss of a benefit under, or result in the Closing. The Seller shall continue creation of any Lien in or upon any of the properties or assets of Xxxxx, any Xxxxx Subsidiary or Acquiror or any of its subsidiaries under, or give rise to maintain any increased, additional, accelerated or guaranteed rights or entitlements under, any provision of such Contract, or (iii) containing any restriction on the ability of Xxxxx or any of the Xxxxx Subsidiaries to assign all insurance policies or any portion of its rights, interests or obligations thereunder, unless such restriction expressly permits any assignment to Acquiror or any of its subsidiaries in full force connection with or following the consummation of the Merger and effect up the other transactions contemplated hereby;
(o) waive, release or assign any rights or claims under, fail to take a required action under, permit the lapse of or default under, or modify, amend or terminate any Xxxxx Contract;
(p) pay, discharge, settle or satisfy any claims (including claims of stockholders and including any stockholder litigation relating to the Closing Date. If Offer, the Seller contemplates entering Merger or any other transaction contemplated hereby), liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice;
(q) take any action (or omit to take any action) if such action (or omission) would or could reasonably be expected to result in any of the conditions to the obligation of Acquiror to consummate the Merger set forth in Article VI and the conditions to consummate the Offer in Annex A not being satisfied or materially delay such satisfaction;
(r) except as required by applicable Law, adopt or enter into any transaction or agreement or taking any other action requiring the Purchaser's prior written consent under this Agreement, then the Seller shall give the Purchaser notice of such proposed transaction or agreement a reasonable time in advance of the proposed effective date thereof, and the Purchaser shall have three (3) Business Days in which to respond in writing either affirmatively or negatively. If the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, collective bargaining agreement or other action be unreasonably withheldlabor union Contract applicable to any officer, director, employee of Xxxxx or any of the Xxxxx Subsidiaries or terminate the employment of any such Person that has an employment, severance or similar agreement or Contract with Xxxxx or any of the Xxxxx Subsidiaries;
(s) discharge or satisfy any Lien or pay any obligation or liability other than in the ordinary course of business consistent with past practice;
(t) fail to maintain insurance coverage at levels consistent with presently existing levels;
(u) commence, participate or agree to commence or participate in any bankruptcy, voluntary liquidation, dissolution, winding up, examinership, insolvency or similar proceeding in respect of Xxxxx or any Xxxxx Subsidiary; Agreement and Plan of Merger
(v) create or have any subsidiary of Xxxxx, other than the Xxxxx Subsidiaries;
(w) engage in any business or business activity other than the business and business activities currently conducted; or
(x) authorize any of, or commit, resolve or agree, whether in writing or otherwise, to take any of, the actions listed above in this Sections 5.1.
Appears in 1 contract
Samples: Merger Agreement (Coley Pharmaceutical Group, Inc.)
Preservation of Business. (a) From the Date date of this Agreement until the Closing DateClosing, Parent shall cause the Seller Subject Entities to operate only in the ordinary and usual course of business and consistent with past practice, and shall use reasonable best efforts to (i) shall operate preserve intact the Properties only in present business organization and personnel of the Ordinary Course of Business, Subject Entities and shall not, without Purchaser's prior written consent, engage in any transaction outside the Ordinary Course of Business except as otherwise permitted hereinFunds, (ii) shall not, without Purchaser's prior written consent, sell or list for sale any of the Properties, (iii) shall use its reasonable best efforts to preserve the Properties, including the goodwill, going concern value, goodwill and advantageous relationships of the Seller Subject Entities and Funds with residents, customers, suppliers, employees, independent contractors, employees contractors and other Persons material to the operation of the Propertiestheir respective businesses, (iii) prevent any event that could have a Material Adverse Effect and (iv) shall perform its material obligations under the Leases and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, and (vi) shall not take or permit any action or omission which that would cause any of its the representations or warranties of any Seller or Parent contained herein or in any of its Related Agreements to become inaccurate in any material respect or any of the covenants made by it of any Seller or Parent contained herein or in any of its Related Agreements to be breached breached; provided, however, that anything contained in any material respect. this Section 7.3 notwithstanding, (x) the Asset Sellers and Shareholders shall be entitled to distribute to Parent, immediately prior to the Closing, an amount in Cash equal to the Sellers’ good faith estimate of the amount by which the Net Asset Amount will exceed $150 million as of the Closing and (y) the Asset Sellers and Shareholders shall be entitled to take such actions, after consultation with and upon the prior approval of Purchaser, as are outlined on Schedule 7.3(a) hereto in order to effect the transfer of certain Assets into CIS Limited prior to the Closing.
(b) Without limiting the foregoinggenerality of Section 7.3(a), prior to the Closing, Parent shall not permit any Asset Seller, any Acquired Corporation, any Acquired Corporation Subsidiary or any Fund to, without the Purchaser's prior written consentconsent of Purchaser:
(i) incur any obligation or enter into any Contract that would be required to be disclosed on Schedule 5.14 or Schedule 5.15;
(ii) take any action, or enter into or authorize any Contract or transaction, other than in the Seller will not cause ordinary course of business and consistent with past practice;
(iii) sell, transfer, convey, assign or otherwise dispose of any of its assets or properties, except sales of inventory in the ordinary course of business and consistent with past practice;
(iv) except as set forth on Schedule 7.3(b)(iv), waive, release, settle or cancel any claims against third parties or debts owing to it, or any rights that have any value;
(v) make any changes in its accounting systems, policies, principles, practices or methods;
(vi) enter into, authorize or permit any default to occur under transaction with any other Subject Entity or any Affiliate of any Subject Entity other than in the Existing Debt or cause ordinary course of business and consistent with past practice;
(vii) suffer or permit the creation of any Lien over any assets of any Subject Entity (including, with respect to the Asset Sellers, any of the Assets);
(viii) make any borrowings, incur any debt (other than trade payables in the ordinary course of business and consistent with past practice), or assume, guarantee, endorse (except for the negotiation or collection of negotiable instruments in the ordinary course of business and consistent with past practice) or otherwise become liable (whether directly, contingently or otherwise) for the obligations of any other Person, or make any payment or repayment in respect of any indebtedness (other than trade payables, indebtedness pursuant to subordinated loans, and accrued expenses in the ordinary course of business and consistent with past practice);
(ix) make any loans, advances or capital contributions to, or investments in, any other Person;
(x) terminate any employee or hire any individual to be employed by any Subject Entity;
(xi) enter into, adopt, amend or terminate any bonus, profit sharing, compensation, termination, stock option, stock appreciation right, restricted stock, performance unit, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee, or increase in any manner the outstanding compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any existing plan and arrangement or enter into any Contract, agreement, commitment or arrangement to do any of the foregoing;
(xii) except for capital expenditures contemplated by clause (xiii) below, acquire, lease or encumber any assets outside the ordinary course of business or any assets that are material to any Subject Entity;
(xiii) authorize or make any capital expenditures that individually or in the aggregate principal balance thereof from are in excess of $100,000;
(xiv) file any amended Tax Return or any claim for refund of Taxes, amend any payment of Taxes paid by or on behalf of any Subject Entity or any Fund, waive or extend the Date statute of this Agreement until limitations in respect of any Taxes, make, revoke, or amend any Tax election (other than the contemplated election to treat CIS Limited as a branch of Cargill PLC for United States federal income tax purposes), change any method of Tax accounting or Tax procedure or practice, or settle or compromise any claim relating to Taxes;
(xv) pay any amount, perform any obligation or agree to pay any amount or perform any obligation, in settlement or compromise of any suit or claim of liability against any Subject Entity or any of its directors, officers, employees or agents;
(xvi) terminate, modify, amend or otherwise alter or change any of the terms or provisions of any Contract (other than immaterial modifications to customer contracts in the ordinary course of business and consistent with past practice), or pay any amount not required by Law or by any Contract; or
(xvii) agree, whether in writing or otherwise, to do any of the foregoing.
(c) Without limiting the generality of Section 7.3(a), except as set forth on Schedule 7.3(c), prior to the Closing. The Seller , Parent shall continue to maintain all insurance policies in full force and effect up to and including not permit any Acquired Corporation or any Acquired Corporation Subsidiary to, without the Closing Date. If the Seller contemplates entering into any transaction or agreement or taking any other action requiring the Purchaser's prior written consent under this Agreementof Purchaser:
(i) authorize for issuance, then issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the Seller shall give the Purchaser notice issuance or granting of such proposed transaction options, warrants, convertible or agreement a reasonable time in advance exchangeable securities, commitments, subscriptions, rights to purchase or otherwise) any shares of its capital stock or any other securities of the proposed effective date Acquired Corporations or any Acquired Corporation Subsidiary, or amend any of the terms of any such capital stock or other securities;
(ii) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, and or redeem or otherwise acquire any capital stock or other securities of the Purchaser shall have three Acquired Corporations or any Acquired Corporation Subsidiary;
(3iii) Business Days merge into or with or consolidate with any other Person;
(iv) make any change in which to respond the Articles of Incorporation, by-laws or similar organizational instruments of the Acquired Corporations or any Acquired Corporation Subsidiary; or
(v) agree, whether in writing either affirmatively or negatively. If otherwise, to do any of the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheldforegoing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Refco Group Ltd., LLC)
Preservation of Business. From (a) Except for matters set forth in Schedule 6.2(a) or as otherwise expressly permitted by the Date terms of this Agreement, from the date of this Agreement until to the Closing DateClosing, the Seller (i) Selling Parties shall operate conduct the Properties only Business in the Ordinary Course usual, regular and ordinary course in substantially the same manner as previously conducted (including with respect to work-force reductions, collections of accounts receivable, payments of accounts payable, research and development, sales practices (including promotions, discounts, concessions and payment terms), maintenance and repair expenditures, capital expenditures and environmental expenditures) and use all reasonable efforts to, and take such actions as the Purchaser reasonably requests in order to, keep intact the Business, and shall not, without Purchaser's prior written consent, engage in any transaction outside keep available the Ordinary Course of Business except as otherwise permitted herein, (ii) shall not, without Purchaser's prior written consent, sell or list for sale any services of the Properties, (iii) shall use its reasonable best efforts to Current Employees and preserve the Properties, including the goodwill, going concern value, and advantageous relationships of the Seller Business with residents, material customers, suppliers, independent contractors, employees distributors and other Persons material others with whom the Business deals to the operation end that the Business shall be unimpaired at the Closing. Prior to the Closing, the Selling Parties shall not take, and shall not permit any of their Representatives to take, any action that would, or that could reasonably be expected to, result in any of the Propertiesconditions to the Acquisition set forth in Article VII or Article VIII not being satisfied, (iv) shall perform its material obligations under the Leases and other material agreements affecting the Properties, (v) shall perform its material obligations under all Contracts, and (vi) shall not take or permit any action or omission which would cause including any of its the representations or warranties contained herein to become inaccurate in any material respect or any of the covenants Selling Parties or Principal Stockholders made by it to be breached in this Agreement becoming untrue or incorrect in any material respect. Without In addition (and without limiting the generality of the foregoing), except as otherwise expressly permitted or required by the terms of this Agreement, the Selling Parties shall not, and shall not permit any of their Representatives to, do any of the following in connection with the Business without the Purchaser's prior written consentconsent of the Purchaser, not to be unreasonably withheld:
(i) adopt or amend any Benefit Plan or enter into, adopt, extend (beyond the Seller will not cause Closing Date), renew or permit amend any default collective bargaining agreement or other Contract with any labor organization, union or association, except in each case as required by Law;
(ii) grant to occur under the Existing Debt any officer, director, Current Employee or cause or permit Contingent Worker any increase in compensation or benefits, except in the outstanding aggregate principal balance thereof from ordinary course of business and consistent with past practice or as may be required under existing agreements and except for any increases for which the Date Selling Parties shall be solely obligated at or after Closing;
(iii) terminate the employment of this Agreement until any of the Closing. The Seller shall continue Current Employees and Contingent Workers who work or provide services to maintain all insurance policies the Business;
(iv) incur or assume any Liabilities (including Indebtedness) or guarantee any Liabilities (including Indebtedness) or otherwise take any action to incur or assume, or fail to take any action required by any obligation or duty that results in full force the incurrence of, any other material Liabilities of any nature, other than in the ordinary course of business and effect up consistent with past practice;
(v) permit, allow or suffer any Asset to and including become subjected to any Lien of any nature whatsoever (other than Permitted Liens);
(vi) (A) prepay any long-term debt, or pay, discharge or satisfy any Liabilities, other than the payment of accounts payable in the ordinary course of business that are due on or before the Closing Date. If Date and which does not otherwise violate any covenant in this Section 6.2; (B) accelerate or delay the Seller contemplates entering collection of notes receivable or accounts receivable, including agreeing to or allowing a discount for such receivables, in advance of or beyond their regular due dates or the dates on which the same would have been collected in the ordinary course of business consistent with past practice; (C) delay or accelerate the payment of any account payable in advance of its due date or the date such Liability would have been paid in the ordinary course of business consistent with past practice or (D) cancel any material Indebtedness (individually or in the aggregate) owed to it or waive any claims or rights of substantial value;
(vii) pay, loan or advance any amount to, or sell, transfer or lease any of its assets that would be Assets to, or enter into or amend or otherwise modify any agreement (including any Affiliate Contract) or arrangement with, the Selling Parties or any of their Affiliates;
(viii) make any change in any method of accounting or accounting practice or policy other than those required by GAAP;
(ix) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or Person or division thereof or otherwise acquire any assets (other than inventory or supplies in the ordinary course, consistent with past practice) that are material, individually or in the aggregate, to the Business or that would be Assets;
(x) make or incur any capital expenditure that, individually, is in excess of $25,000 or make or incur any such capital expenditures which, in the aggregate, are in excess of $50,000;
(xi) sell, lease, mortgage, pledge, encumber, license or otherwise dispose of any of its assets that would be Assets, except for the sale or license of products and services in the ordinary course of business and consistent with past practice;
(xii) acquire fee title to, or an ownership interest in, any real property that would be an Asset or enter into any lease (or renewal of any lease) of real property that would be an Asset;
(xiii) enter into any transaction or (including any employment agreement or taking contract) with any current or former officer, director, Employee or Contingent Worker of the Selling Parties or any Affiliate of the Selling Parties (or member of their families or trusts for their benefit);
(xiv) enter into or amend any covenant not to compete, or enter into or amend any other covenant restricting the development, marketing or distribution of the products and services of the Business;
(xv) make any purchase commitment in excess of the normal, ordinary and usual requirements or at any price in excess of the then current market price or for a period of greater than 30 days;
(xvi) since the date of the Balance Sheet (A) declare, set aside, make, pay or incur any obligation to pay any dividend or distribution on the capital stock of Core, Core Euro or Core US (whether payable in cash, stock, property or a combination thereof) or enter into any voting agreement with respect to the capital stock of Core, Core Euro or Core US; (B) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of the capital stock of Core, Core Euro or Core US or other equity interests or securities of Core, Core Euro or Core US; or (C) make any change to the organizational documents of any of the Selling Parties;
(xvii) reduce or discount any prices of Business products or services;
(xviii) amend any existing material Contract;
(xix) institute, settle or agree to settle any Proceeding before any court or governmental body or waive, release, assign, settle, compromise or surrender any rights related to any material claims or any pending or threatened Proceeding relating to or effecting the Business or Assets;
(xx) enter into any license, option or other Contract relating or pertaining to Transferred Intellectual Property or Transferred Technology that would constitute Assets or to the Intellectual Property or Technology of any third party;
(xxi) take any action requiring the Purchaser's prior written consent under this Agreement, then the Seller shall give that limits or precludes the Purchaser notice from (A) rejecting any employment contract or (B) setting any initial term or condition of employment for any Transferred Employees;
(xxii) enter into any other transaction, Contract or commitment (of a type not described above) other than in the ordinary course of business;
(xxiii) take any action (or omit to take any action) with respect to Taxes if such proposed transaction action or agreement a reasonable time in advance omission would have the effect of increasing the present or future Tax Liability or decreasing any present or future Tax asset of the proposed effective date thereofPurchaser or of the Business; or
(xxiv) authorize any of, and the Purchaser shall have three (3) Business Days in which or commit or agree to respond take, whether in writing either affirmatively or negatively. If otherwise, any of the Purchaser shall fail to so respond, then Purchaser's consent will be irrebuttably presumed. In no event shall Purchaser's consent to any such transaction, agreement or other action be unreasonably withheldforegoing actions.
Appears in 1 contract
